Ex Parte Seo et al

Patent Trials and Appeals Board

Mar 28, 2019

13094940 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/094,940 04/27/2011
126518 7590 04/01/2019
Goldilocks Zone IP Law
4208 Evergreen Lane, Suite 232
Annandale, VA 22003
FIRST NAMED INVENTOR
Kyoung Jin Seo
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
0036-0001 1613
EXAMINER
TRAN,UYENM
ART UNIT PAPER NUMBER
1726
NOTIFICATION DATE DELIVERY MODE
04/01/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
sckwon@gzonelaw.com
docket@ gzonelaw .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KYOUNG JIN SEO and MEEMONGKOLKIAT VICHAI
Appeal2017-007162
Application 13/094,940
Technology Center 1700
Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
DERRICK, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF CASE
Appellants2 seek review under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1, 7-10, 20-22, and 25 under
35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 We refer to the Specification filed April 27, 2011 ("Spec."), the Final
Office Action mailed January 21, 2016 ("Final Act."), the Appeal Brief filed
August 15, 2016 ("App. Br."), and the Examiner's Answer dated December
28, 2016 ("Ans.").
2 According to Appellants, Intellectual Keystone Technology LLC is the real
party in interest. App. Br. 3.
Appeal2017-007162
Application 13/094,940
CLAIMED SUBJECT MATTER
Appellants' invention relates to a solar cell. Spec., Abstract, 2:9-11.
Claim I-the sole independent claim-is illustrative:
1. A solar cell comprising:
a base layer including a first conductive type impurity
element from a first Group of elements, an upper surface, and a
lower surface opposing the upper surface;
an emitter layer formed on the upper surface of the base
layer and including a second conductive type impurity element
from a second Group of elements different from the first Group;
a front electrode connected to the emitter layer;
a second passivation layer comprising aluminum oxide
formed on the lower surface of the base layer that guides
carriers generated by a photoelectric effect to the front
electrode;
a first passivation layer comprising a silicon nitride group
compound formed on the second passivation layer, wherein the
refractive index of the first passivation layer is equal to or less
than about 1.96 that guides carriers generated by the
photoelectric effect to the front electrode; and
a rear electrode formed on the first passivation layer and
connected to the base layer through the second passivation layer
and the first passivation layer.
App. Br. 14 (Claims App'x).
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Application 13/094,940
THE REJECTIONS
Claims 1, 7-9, 21, 22, and 25 stand rejected under 35 U.S.C. § 103
over Rohatgi 3 in view of Park4 and Isaka. 5, 6
Claim 10 stands rejected under 35 U.S.C. § 103 over Rohatgi, Park,
Isaka, and U ematsu. 7
Claim 20 stands rejected under 35 U.S.C. § 103 Rohatgi, Park, Isaka,
and Duerinckx. 8
DISCUSSION
Upon consideration of the evidence and opposing contentions of
Appellants and the Examiner, we are not persuaded that the Examiner erred
harmfully in rejecting the claims for obviousness over the cited prior art.
We add the following.
Appellants argue the claims subject to rejection on the basis of claim 1
and dependency from claim 1, including claims 10 and 20. App. Br. 6-13.
Obviousness over Rohatgi, Park, and Isaka
Rohatgi relates to a thin silicon solar cell and its fabrication. Rohatgi,
Abstract. The Examiner relies on Rohatgi's disclosed solar cell, particularly,
on its p-type doped substrate 400 as the base layer of claim 1, its n-type
3 Rohatgi et al., US 2009/0301559 Al, published December 10, 2009.
4 Park, US 2007/0175508 Al, published August 2, 2007.
5 Isaka et al., US 2010/0032012 Al, published February 11, 2010.
6 The Office also relies on Gorin et al., Fabrication of silicon nitride
waveguides for visible-light using PECVD: a study of the effect of plasma
frequency on optical properties, OPTICS EXPRESS 16: 13509-16 (2008).
7 Uematsu et al., US 6,461,947 Bl, issued October 8, 2002.
8 Duerinckx & Szlufcik, Defect passivation of industrial multi crystalline
solar cells based on PECVD silicon nitride, SOLAR ENERGY MATERIALS &
SOLAR CELLS 72: 231--46 (2002).
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Application 13/094,940
diffused layer 410 as the emitter layer, its front electrode 445 connected to
emitter 410 as the front electrode connected to the emitter layer, its barrier
layer 420 as the first passivation layer, its passivation layer 405 as the
second passivation layer, and its rear electrode 450 as the rear electrode on
the first passivation layer and connected to the base layer through the second
passivation layer and the first passivation layer. Ans. 2-3 ( citing Rohatgi
,r,r 36, 37, 39, 44, 45, Fig. 4F). The Examiner relies on Rohatgi disclosing
that its barrier layer 420, relied on by the Examiner as the first passivation
layer, is made of silicon nitride. Id. at 3 ( citing Rohatgi ,r 39). The
Examiner further relies on Rohatgi for disclosing that the silicon nitride
layer is a silicon nitride layer formed by PECVD. Id. at 8 ( citing Rohatgi
,r 31 ). As to the second passivation layer, the Examiner concedes that
Rohatgi' s passivation layer 405 is made of silicon dioxide. Id. at 4 ( citing
Rohatgi ,I 36, Fig. 4F).
Park relates to a high efficiency solar cell comprising semiconductor
substrate. Park, Abstract. The Examiner relies on Park for disclosing that
the silicon nitride in its solar cell has a refractive index of 1.9. Id. at 3
(citing Park ,r 36). The Examiner further relies on Park for disclosing that its
silicon nitride layer is formed by PECVD. Id. at 8 ( citing Park ,r 36).
Isaka relates to a solar cell comprising silicon substrate and its
fabrication. Isaka, Abstract. The Examiner relies on Isaka for teaching that
silicon oxide and aluminum oxide are alternative materials for the second
passivation layer. Ans. 4 ( citing Isaka ,r 45). As disclosed in Isaka, "[t]he
second passivation film [layer] is formed between the first passivation film
[layer] and the silicon substrate." Isaka ,r 45.
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Application 13/094,940
As to the first passivation layer, the Examiner determines that the
silicon nitride first passivation layer in Rohatgi has a refractive index of 1.9
because it is made of the same material, and in the same manner, as the
silicon nitride layer in Park. Ans. 8 ( citing Rohatgi ,r 31; Park ,r 36).
As to the second passivation layer, the Examiner concludes that a
person of ordinary skill in the art would have found it obvious to use
aluminum oxide because Isaka teaches that aluminum oxide and silicon
oxide, the material used in Rohatgi, are known alternative materials. Id. at 4
( citing MPEP 2144.06 Section II).
As to the recitation that, for both the first passivation layer and the
second passivation layer, the structure "guides carriers generated by the
photoelectric effect to the front electrode," the Examiner determines the
language is functional and that "[ w ]hile features of an apparatus may be
recited either structurally or functionally, claims directed to an apparatus
must be distinguished from the prior art in terms of structure rather than
function." Ans. 4--5.
Appellants contend both that the combination fails to teach or suggest
the recited second passivation layer and that the Examiner has failed to
provide sufficient, articulated reasoning to support the rejection.
As to the combination not teaching or suggesting the second
passivation layer, Appellants take the position that Rohatgi's "passivation
layer 405 has nothing to do with '[guiding] carriers generated by a
photoelectric effect to the front electrode."' App. Br. 7. Appellants argue
that Rohatgi, rather, discloses that its passivation layer 405 formed of a
dielectric such as silicon dioxide "'may help to prevent inversion' and
'separates the barrier layer 420 from the doped substrate 400 to avoid
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Application 13/094,940
disadvantageous shunting of the solar cell."' Id. ( citing Rohatgi ,r,r 3 6, 40).
Appellants further maintain that "the Final Office Action refused to give
patentable weight to" "the recitation '[guiding] carriers generated by a
photoelectric effect to the front electrode"' recited in claim 1. Id. at 7-8.
Appellants' argument is unpersuasive of harmful error because, as set
forth by the Examiner, the rejection is grounded on the combination of
references providing an apparatus having the same structure as claimed, and,
as correctly set forth by the Examiner, claims directed to an apparatus must
be distinguished from the prior art in terms of structure. See, e.g., Catalina
Mktg. Int'!, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir.
2002) ("[T]he patentability of apparatus or composition claims depends on
the claimed structure, not on the use or purpose of that structure."). The
Examiner reasonably determined that the silicon nitride layer in Rohatgi by
PECVD would have the same refractive index as the silicon nitride layer
formed in Park by PECVD. The Examiner's reliance on the combination
providing the structure according to the claim was, accordingly, well
founded, and Appellants direct us to neither persuasive argument, nor
evidence that the provided structure does not have the recited characteristics
or function. See, e.g., In re Best, 562 F.2d 1252, 1255 (CCPA 1977)
("Where ... the claimed and prior art products are identical or substantially
identical ... the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
claimed product.").
As to the sufficiency of the Examiner's articulated reasoning,
Appellants contend a deficiency in that provided for the recited "first
passivation layer comprising a silicon nitride group compound ... wherein
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Application 13/094,940
the refractive index of the first passivation layer is equal to or less than about
1.96 that guides carriers generated by the photoelectric effect to the front
electrode." App. Br. 8. Appellants maintain that the Examiner's reasoning
as to modifying the silicon nitride layer 420 of Rohatgi to have the refractive
index of 1.9 taught by Park is a mere conclusory statement and lacks a
sufficient basis for the combination. Id. at 8-9. Appellants further argue
that the reasoning is flawed on the basis that the silicon nitride layer 15 in
Park, an anti-reflective layer, is not structurally or functionally equivalent to
the barrier layer 420 of Rohatgi. Id. at 10. Appellants further contend the
Examiner relied on impermissible hindsight in looking to the teachings of
Park. Id. at 11.
Appellants' argument is unpersuasive of harmful error because the
Examiner does not combine any element from Park's solar cell into
Rohatgi' s solar cell, but rather relies on Park as evidencing the refractive
index of the silicon nitride layer in Rohatgi made of the same material and in
the same manner. See, e.g., Ans. 8 ( citing Rohatgi ,r 31; Park ,r 3 6).
Appellants provide no cogent argument why one of ordinary skill in the art
would not look to Park for this purpose. See generally App. Br.
As to Appellants' further contentions as to Isaka and Gorin (App. Br.
11 ), we discern no cogent argument contesting the Examiner's detailed
ground of rejection (Ans. 2-5). Cf In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art. Because Lovin did not provide such
arguments, the Board did not err in refusing to separately address claims 2-
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Application 13/094,940
15, 17-24, and 31-34."); see also DeSilva v. DiLeonardi, 181 F.3d 865, 867
(7th Cir. 1999) ("A brief must make all arguments accessible to the judges,
rather than ask them to play archaeologist with the record.").
For the reasons above, we are not persuaded of harmful error in the
Examiner's rejection of claim 1 over Rohatgi, Park, and Isaka. See In re
Chapman, 595 F.3d 1330, 1338 (Fed. Cir. 2010) (quoting Shinseki v.
Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that the error
is harmful normally falls upon the party attacking the agency's
determination."). Moreover, it follows that we are not persuaded that the
Examiner relied on improper hindsight. See In re Kahn, 441 F.3d 977, 988
(Fed. Cir. 2006) (requiring "some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness") ( cited with
approval inKSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007)).
Having not been persuaded as to the rejection of claim 1, it follows
that Appellants' reliance on the dependency of claims 7-9, 21, 22, and 25
from claim 1 does not persuade us of harmful error in the rejection of those
claims.
Obviousness over Rohatgi, Park, and Is aka, in further view of
Uematsu or Duerinckx
The Examiner further relies on Uematsu in rejecting claim 10 and on
Duerinck in rejecting claim 20. Ans. 6-7; Final Act. 6-7.
Appellants rely on the contended error as to the rejection over
Rohatgi, Park, and Osaka, and that the addition of the further references does
not cure the contended error. App. Br. 12-13.
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Application 13/094,940
Not being convinced of harmful error in the rejection of claims over
Rohatgi, Park, and Osaka, we are not apprised of harmful error in the
rejection of claims in further view ofUematsu or Duerinckx.
DECISION
The Examiner's rejections of claims 1, 7-10, 20-22, and 25 under
35 U.S.C. § 103 are 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)(l).
AFFIRMED
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