Ex Parte Patel et al

Patent Trial and Appeal Board

Sep 26, 2017

13491390 (P.T.A.B. Sep. 26, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
B002 7269
EXAMINER
SLAWSKI, MAGALI P
ART UNIT PAPER NUMBER
1758
MAIL DATE DELIVERY MODE
13/491,390 06/07/2012
128940 7590 09/26/2017
Sol Aero Technologies Corp.
10420 Research Road SE
Albuquerque, NM 87123
Pravin Patel
09/26/2017 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte PRAVIN PATEL and BENJAMIN CHO
Appeal 2016-008195
Application 13/491,390
Technology Center 1700
Before PETER F. KRATZ, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-008195
Application 13/491,390
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1, 2, 4—10, 12, and 13. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to metamorphic multijunction solar
cells for use in a space radiation environment, sometimes referred to as an
air mass zero (AMO) environment (Spec. 11).
Claim 1 is illustrative:
1. A multijunction solar cell comprising:
a first solar subcell composed of InGaAs and having a first band gap
and a first short-circuit current;
a second solar subcell composed of InGaAs disposed over the first
solar subcell and having a second band gap greater than the first band gap
and a second short-circuit current greater than the first short-circuit current
by an amount in the range of 2% to 6%;
a third solar subcell composed of GaAs disposed over the second solar
subcell and having a third band gap greater than the second band gap and a
third short-circuit current less than the first short-circuit current by an
amount in the range of 2% to 6%; and
a fourth solar subcell composed of InGaP disposed over the third solar
subcell having a fourth band gap greater than the third band gap, and a
fourth short-circuit current less than the third short-circuit current by an
amount in the range of 6% to 10%,
so that at an "end of life" state corresponding to exposure to a fluence
of lxl 015 IMeV electrons per square centimeter of the multijunction solar
cell in an AMO space environment, the short-circuit current of each of the
subcells are substantially identical.
Appellants appeal the following rejections1:
1 The Examiner withdrew the 35 U.S.C. § 112,12, rejection of claim 2.
(Ans. 16).
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Appeal 2016-008195
Application 13/491,390
1. Claims 7—10, 12, and 13 are rejected under 35 U.S.C. § 112, first
paragraph, as failing to comply with the written description
requirement.
2. Claims 1,2, and 4—6 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Friedman (“0.7-eV GalnAs Junction for a
GalnP/GaAs/GaInAs(leV)/GaInAs(OFour-Junction Solar CelF, IEEE
598-602 (2006)) in view of King (US 2004/0200523, Oct. 14, 2004),
Yamaguchi (“Radiation Resistance of Compound Semiconductor
Solar Cells”, Journal Of Applied Physics 78, (1995)), and Myong (US
2011/0048499 Al, Mar. 3, 2011) as evidenced by Batop
{Optoelectronics — Eg(InGaAs), available at
http://www.batop.de/information/Eg InGas.htmfMay 16, 2015), and
Seo (US 2012/0007114 Al, Jan. 12, 2012).
3. Claim 7 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Friedman in view of Myong as evidenced by Batop.
4. Claims 8—10 and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Friedman in view of Myong and King.
5. Claim 13 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Friedman in view of Myong, King, and Yamaguchi.
6. Claims 1, 2, and 4-6 are provisionally rejected on the ground of
nonstatutory double patenting as being unpatentable over claims of
copending Application No. 13/941,936.
Appellants do not argue the merits of the provisional double patenting
rejection (6) other than to state that if the provisional obviousness-type
double patenting rejection is the only rejections left pending in this appeal
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Application 13/491,390
after Board review, the Examiner should pass this application to issue
pursuant to the Manual of Patent Examining Procedure § 822.01 (Br. 16).
Because we affirm the Examiner’s § 103 rejections, we summarily affirm
the provisional double patenting rejections. Ex parte Moncla, 95 USPQ2d
1884, 1885 (BPAI 2010) (precedential). See also, Ex parte Jerg, 2012 WL
1375142, *3 (BPAI 2010) (informative) (“Panels have the flexibility to
reach or not reach provisional obviousness-type double-patenting rejections.
See Ex parte Moncla, 95 USPQ2d 1884 (BPAI 2010)”).
FINDINGS OF FACT & ANAFYSIS
REJECTION (1): WRITTEN DESCRIPTION
The Examiner finds that the phrase “prior to operational use” in
claims 7 and 9 lacks written descriptive support (Final Act. 5—6). The
Examiner finds that that phrase “a beginning of life state” does not provide
written descriptive support for “prior to operational use” because the first
few minutes, or even years, into a period of operational use can be identified
as a beginning of life state without occurring prior to operational use (Final
Act. 6).
Appellants contend that one of ordinary skill in the art would have
understood that the plain and ordinary meaning of the phrase “beginning of
life” as applied to solar cells means “prior to operational use” (Br. 6—7).
Appellants argue that paragraph 6 of the Specification describes that the
mismatched short circuit currents at the beginning of life allows for greater
deterioration of the conversion efficiency during deployment of the solar cell
in an AMO environment (Br. 7). Appellants contend that the disclosure of
deterioration of the conversion efficiency during deployment means that the
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Appeal 2016-008195
Application 13/491,390
beginning of life would mean prior to deterioration during deployment (i.e.,
“prior to operational use”) (Br. 7). Appellants argue that the Examiner has
not established by the preponderance of the evidence that one of ordinary
skill in the art would conclude that Appellants were not in possession of the
invention now claimed (Br. 8).
In addition to the Examiner’s findings in the Final Action regarding
the meaning of “beginning of life state,” the Examiner finds that operational
use need not coincide with deployment (Ans. 16—17). The Examiner finds
that during testing of the solar cell before deployment, the cell is in
operational use. The Examiner concludes that the phrase “prior to
operational use” is not the same scope as the phrase “a beginning of life
state” that appears in the original disclosure (Ans. 17).
Contrary to Appellants’ arguments, the preponderance of the evidence
favors the Examiner’s finding of lack of written description. Appellants’
disclosure that the short circuit currents of the cells are mismatched at
“beginning of life” to allow for greater deterioration of the conversion
efficiency of the InGaAs solar cells during deployment of the solar cell in an
AMO environment does not demonstrate possession of the short circuit
mismatch prior to operational use. The Examiner reasonably finds that
“prior to operational use” is of different scope than “a beginning of life
state.” The Examiner makes specific findings regarding the difference in
scope so as to shift the burden to Appellants to show possession (Ans. 16—
17). Appellants do not address these findings in a Reply Brief. The
Examiner has dispensed with the burden of showing lack of written
descriptive support and Appellants have not shown possession of the full
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Application 13/491,390
scope of the phrase “prior to operational use” as the Examiner finds that
phrase is construed in light of the Specification.
On this record, we affirm the Examiner’s § 112, 1 rejection for lack
of written description.
REJECTIONS (2) TO (5)
Appellants argue the subject matter of claims 1 and 7 (Br. 9—14).
Appellants rely on arguments made regarding claims 1 and 7 when arguing
the claims under rejections (4) and (5) (Br. 15—16). Accordingly, the claims
not argued separately will stand or fall with claims 1 and 7.
The Examiner finds that Friedman teaches the subject matter of claim
1, except for the claimed short circuit currents (Final Act. 9—10). The
Examiner relies on Batop as evidence that Friedman’s Gao.44hio.56As junction
has a band gap of about 0.7 (Final Act. 9). The Examiner finds that the
claimed relationships for the short circuit currents would have been obvious
based upon the teachings of King, Yamaguchi, and Myong (Final Act. 10—
12). The Examiner’s findings regarding King, Yamaguchi, and Myong are
located on pages 10—12 of the Final Action. The Examiner concludes that it
would have been obvious to use and optimize the short circuit current
relationships taught by King, Yamaguchi, and Myong in Friedman’s solar
cell in order to increase efficiency by reducing waste (Final Act. 12).
Appellants argue that it is improper to rely on Batop or Seo2 as
evidentiary references in a § 103 rejection because evidentiary references
2 The Examiner relied on Seo as evidence that GaAs and Gao.5hio.5P have the
same lattice constant in addressing the subject matter of claim 4 (Final Act.
13).
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Application 13/491,390
may only be used to support a § 102 rejection based on inherency (Br. 9, 12—
13).
The Examiner properly uses Batop and Seo as evidentiary references
to support the inherent findings that the particular solar cell materials have
the band gap and lattice constant recited in the claims (Final Act. 9, 13; Ans.
17). The Examiner correctly states that evidentiary references may be used
in either a § 102 or § 103 rejection (Ans. 17—18).
Appellants argue that King teaches away from the claim limitation
that requires that “at an ‘end of life’ state corresponding to exposure to a
fluence of 1 x 1015 IMeV electrons per square centimeter of the
multijunction solar cell in an AMO space environment, the short-circuit
current of each of the subcells are substantially identical.” (Br. 10).
Appellants argue that King teaches in paragraph 49 that over the entire
lifetime of the cell the ratio of circuits in the layers will be closer to unity
whereas the claim requires that at the end of life state the short circuit
currents of each of the subcells are substantially identical (Br. 10—11).
Appellants contend that based on King’s teachings alone to keep the ratio of
currents between the cells close to unity over the entire lifetime of the cell
(e.g., a ratio greater than one over part of the life of the cell, and a ratio less
than one over another part of the life of the cell) would not have led to the
claimed invention that requires the short-circuit current of each of the
subcells are substantially identical at the end of life state (Br. 11).
Appellants’ arguments regarding King alone are unpersuasive because
they fail to address the Examiner’s rejection that is based on the combined
teachings of Friedman, Myong, Yamaguchi, and King. The Examiner finds
that Friedman teaches four solar cells stacked atop one another having the
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same composition as recited in the claims (Ans. 18). The Examiner finds
that the combined teachings of King, Myong, and Yamaguchi would have
suggested optimizing the short circuit currents in the layers so as to arrive at
the arrangement recited in the claims (Ans. 18—19). Appellants do not
dispute that the combined teachings of King, Myong, Yamaguchi, and
Friedman would have suggested the claimed short circuit current
relationship and values.
Moreover, claim 1 recites that at the end of life the short-circuit
current of each of the subcells are “substantially identical.” The
Specification does not define what range of values should be understood to
be substantially identical. Nevertheless, some degree of variation from
identity is permitted by use of the term “substantially.” In other words, at
the end of life the short-circuit currents are not necessarily identical but may
differ from identity in an unsubstantial manner. King teaches that the ratio
of short-circuit currents (i.e., J-ratio) have a value “closer to unity” over the
entire life of the multijunction (MJ) cell (| 49). In our view, King’s teaching
to use differing short-circuit currents but the J-ratio is approximately equal
to 1 (closer to unity) is not excluded by claim 1. The short circuit currents in
King and Appellants’ invention are substantially identical (i.e., a ratio close
to 1) at the end of life. King recognizes that radiation exposure in space
degrades the solar cells and tailors the cells accordingly (| 49). In other
words, the claim 1 requirement of a particular fluence exposure in AMO
environment would have been suggested by King that uses the solar cell in a
space environment.
Appellants contend that Myong’s silicon solar cells would not have
provided any reasonable expectation of any trends regarding degradation in
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Application 13/491,390
the presently claimed Group III-V compound semiconductor based solar
cells (Br. 11, 14). The Examiner finds that Myong discloses a general
principle regarding the affect of solar radiation on two solar cell layers
having similar compositions (Ans. 20). The Examiner finds that Myong’s
teachings would have been applicable to Friedman’s solar cell that uses two
adjacent solar cell layers having the same composition (Ans. 20-21).
Appellants’ arguments do not address the Examiner’s finding that one of
ordinary skill in the art would have understood a general principle from
Myong’s teachings regarding the effect of radiation on solar cells that have
two adjacent layers with the same composition. Indeed, Myong discloses
that the context of the disclosure is not limited to the particular examples and
the teachings in Myong may be applied to other apparatuses (1107).
On this record, we affirm the Examiner’s § 103 rejections.
DECISION
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
ORDER
AFFIRMED
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