NANOHMICS, INC.

Patent Trials and Appeals Board

Nov 9, 2020

2019002940 (P.T.A.B. Nov. 9, 2020)

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.
14/266,361 04/30/2014 Byron Zollars MNANO.001US 4061
93838 7590 11/09/2020
GEORGE L MURPHY
MURPHY STRATEGIC IP
5294 Beach Dr SE
Unit C
St. Petersburg, FL 33705-4887
EXAMINER
ALLEN, STEPHONE B
ART UNIT PAPER NUMBER
2872
NOTIFICATION DATE DELIVERY MODE
11/09/2020 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):
george@murphystrategicip.com
georgelmurphy@icloud.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BYRON ZOLLARS, STEVE SAVOY, and
QIZHEN XUE
____________

Appeal 2019-002940
Application 14/266,361
Technology Center 2800
____________

Before KAREN M. HASTINGS, MONTÉ T. SQUIRE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10, 18, and 19. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Nanohmics, Inc. as the real party in
interest. Appeal Br. 1.
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The invention relates to antireflective structures for reducing the
reflection of radiation from an optic. Spec. ¶ 3. Claim 1 illustrates the
subject matter on appeal and is reproduced below:
1. An optic having an antireflective surface comprising:

a substrate, a buffer layer deposited on at least one side of the
substrate, and a plurality of surface structures, wherein the
plurality of surface structures are configured to reduce reflection
of all wavelengths of electromagnetic radiation over a region of
at least 2.0 octaves within the electromagnetic spectrum region
of 350 nm to 18,000 nm, and wherein the plurality of surface
structures are configured to reduce reflection of said wavelengths
of electromagnetic radiation arriving from all incident angles
from 0° to 70°.

The Examiner maintains the following rejections from the Final
Office Action dated February 13, 2018:
I. Claims 1, 5, 6, 8, and 18 rejected under 35 U.S.C. § 103 as
unpatentable over Yeo (US 2013/0078750 A1, published March 28,
2013).

II. Claims 2, 7, and 19 rejected under 35 U.S.C. § 103 as
unpatentable over Yeo and Biricik (US 5,173,443, issued December
22, 1992).

III. Claims 3 and 4 rejected under 35 U.S.C. § 103 as unpatentable
over Yeo and Egi (US 2008/0158682 A1, published July 3, 2008).

IV. Claims 9 and 10 rejected under 35 U.S.C. § 103 as unpatentable
over Yeo and Jeong (US 2013/0155522 A1, published June 20, 2013).

Appellant presents specific substantive arguments only for the
following claims: (a) claims 1, 5 (Rejection I) and (b) claim 2 (Rejection II).
See generally Appeal Br. Appellant relies on these arguments to address the
rejections of the remaining claims. Id. Accordingly, we select claim 1 as
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representative of the subject matter claimed and decide the appeal as to all
grounds of rejections based on the arguments presented for claims 1, 2,
and 5.

OPINION
After review of the respective positions the Appellant presents in the
Appeal Brief2 and the Examiner presents in the Final Office Action and the
Answer, we AFFIRM the Examiner’s rejection of claims 1–10, 18, and 19
under 35 U.S.C. § 103 for essentially the reasons the Examiner presents.
Our reasoning follows.

Rejection I
Claim 1
We refer to the Examiner’s Final Office Action for a complete
statement of the rejection of claim 1. Final Act. 3–6. Briefly, the Examiner
determines that Yeo discloses an optic having an antireflective surface that is
identical or substantially identical to claimed optic. Final Act. 4; Ans. 14.
Appellant argues principally that Yeo’s Figure 14(a) does not teach
reducing reflection of wavelengths of electromagnetic radiation for
vertically incident light over a region of at least 2.0 octaves within the
electromagnetic spectrum region of 350 nm to 18,000 nm as recited in claim
1 but instead shows light occurring over a 650 nm spectral region of light,
which is 1.51 octave in Appellant’s claimed 350 nm to 18,000 nm spectral
region. Appeal Br. 5. Appellant additionally contends that the Examiner’s
assertion that Yeo’s Figure 14(a) would include the claimed at least 2

2 Appellant did not file a Reply Brief.
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octaves by extrapolating the illustrated trends to at least 1,400 nm is
unsupported by Yeo’s Figure 37 embodiment. Id. at 5–6, 8; Yeo ¶¶
186–192. According to Appellant, Yeo’s Figure 37 embodiment is a
well-known Ge-based multi-junction solar cell that minimizes the reflection
of incident light to elevate the efficiency of the solar cell. Appeal Br. 8.
Appellant asserts that this embodiment uses three solar cell layers, each
layer absorbing light in one of three wavelength bands of 650 nm (top layer),
900 nm (middle layer) and 1900 nm (bottom layer). Id. Appellant contends
that Yeo’s triple junction solar cell would not necessarily benefit from
Appellant’s structures3 because Yeo’s cell already generates excess current
that is dissipated as heat and, thus, the bottom layer of Yeo’s cell is not
critical to increase transmission of light of higher wavelengths (e.g., by
reducing reflection of the higher wavelengths of light). Id. at 8–10.
Appellant directs attention to the Victoria4 publication in support of these
contentions. Id.
In essence, the premise of Appellant’s arguments is that the three-
layer solar cell of Yeo’s Figure 37 embodiment does not support the
Examiner’s extrapolation of the data in Yeo’s Figure 14(a) to arrive at
reflection reductions of the higher wavelengths of light because the bottom
layer of Yeo’s Figure 37 solar cell is not critical to increase transmission of
light of higher wavelengths. Thus, Appellant asserts one skilled in the art

3 Appellant acknowledges that “a nanostructure for antireflection . . .
fabricated on the top cell layer suggests the surface structures of the optic in
Appellant’s claim 1 and their configuration as per claim 1.” Appeal Br. 8.
4 Victoria et al., “Antireflective coatings for multijunction solar cells under
wide-angle ray bundles,” Optics Express, Vol. 20(7):8136–8147, March 26,
2012.

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would not arrive at the claimed “at least 2.0 octaves within the
electromagnetic spectrum region of 350 nm to 18,000 nm” for an optic from
Yeo’s teachings.
Appellant’s arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness.
The Examiner finds that the antireflection nanostructure of Yeo’s
Figure 37 embodiment is useful for elevating efficiency of solar cell layers
that generate electricity from wavelengths of up to about 1900 nm. Final
Act. 4; Yeo ¶¶ 186–193. Based on these disclosures, the Examiner
determines that it would have been obvious to one of ordinary skill in the art
that Yeo discloses an optic having an antireflective surface that is identical
or substantially identical in structure and composition to the claimed optic.
Final Act. 4–5; Ans. 15–16. Thus, the Examiner has provided a reasonable
basis for one skilled in the art to reasonably expect that Yeo’s optic would
possess the characteristics of the claimed invention. In re O’Farrell, 853
F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is
required is a reasonable expectation of success.”).
Relying on the Victoria publication, Appellant asserts that Yeo’s optic
and the claimed optic are different. Appeal Br. 8–9. However, Appellant
misapprehends the teachings of Victoria on page 8140 and Figure 1.
Victoria’s disclosure at page 8140 merely points out that a three layer solar
cell is not a preferred embodiment because the third layer only results in a
minimal gain in transmittance and, thus, “adding the third layer may or may
not be justified depending on the additional cost incurred.” Victoria 8140.
It is well settled that a reference may be relied upon for all that it discloses
and not merely the preferred embodiments as suggested by Appellant. See
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Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
(“[A]ll disclosures of the prior art, including unpreferred embodiments, must
be considered.”) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976));
see also In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982) (explaining
that a prior art reference’s disclosure is not limited to its examples). Given
that Yeo and Victoria teach that a third layer in a three-layer solar cell yields
gains in transmittance, there is a reasonable basis for one skilled in the art to
reasonably expect that Yeo’s optic would possess the characteristics of the
claimed invention. Appellant has not explained adequately how the claimed
optic differs structurally from Yeo’s optic. See In re Spada, 911 F.2d 705,
708 (Fed. Cir. 1990) and In re Best, 562 F.2d 1252, 1254–56 (CCPA 1977)
(explaining that when the Examiner establishes a reasonable basis for
concluding that the claimed and prior art products appear to be the same, the
burden is properly shifted to the applicant to show that they are not).
Thus, Appellant has not explained adequately why the Examiner
reversibly erred by relying on Yeo’s Figure 37 embodiment to establish that
one skilled in the art would arrive at the claimed invention from Yeo’s
teachings. While Appellant argues that the structures of Yeo and the
claimed invention are different because they are made by different processes
(dry etching v. wet etching) (Appeal Br. 10–11), Appellant does not direct us
to any objective evidence that supports adequately the assertion that Yeo’s
optic does not possess the characteristics of the claimed optic. Appellant’s
attorney arguments cannot take the place of evidence. See In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984); In re Payne, 606 F.2d 303, 315 (CCPA
1979).
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Appellant’s arguments that Yeo’s Figure 14(a) does not teach all
incident angles from 0° to 70° recited in claim 1 because it is limited to a
single angle of incident light at 0° is also unavailing for the reasons the
Examiner presents. Appeal Br. 5; Ans. 7–9. Moreover, it is well established
that a prima facie case of obviousness exists where the prior art and claimed
ranges overlap. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003)
(“In cases involving overlapping ranges, we and our predecessor court have
consistently held that even a slight overlap in range establishes a prima facie
case of obviousness.”); see also Titanium Metals Corp. v. Banner, 778 F.2d
775, 783 (Fed. Cir. 1985).
Here, Yeo’s incident light at 0° is the same as the lower endpoint of
the claimed range of incident angles from 0° to 70°. Therefore, a prima
facie case of obviousness exists for the reasons we express above.
Claim 5
Claim 5 recites an optic having a ratio of the mean height of surface
structures to mean base-base spacing of adjacent surface structures is from 4
to 12.
The Examiner finds Yeo suggests the claimed ratio by teaching an
aspect ratio of subwavelength nanostructure and that the desired aspect ratio
is obtained to control antireflection. Final Act. 6–7; Yeo Fig. 13, ¶ 97.
Appellant contends that one of skill in the art would understand that
aspect ratio refers to height/width, which is different from the ratio claimed
in claim 5. Appeal Br. 13. Appellant also asserts that the claimed ratio
cannot be obtained from Yeo’s teachings. Id. at 14–15.
Appellant’s arguments do not point to reversible error in the
determination of obviousness because, as the Examiner explains, the
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Specification states that “the ‘aspect ratio’ of surface structures prepared by
methods of the invention is substantially equivalent to the mean height of the
surface structures present on an optic divided by the mean distance between
the centers of the bases of adjacent surface structures.” Ans. 16–17; Spec.
¶ 38. Thus, Appellant does not distinguish Yeo’s aspect ratio from the
claimed ratio persuasively.
Accordingly, we AFFIRM the Examiner’s prior art rejection of claims
1, 5, 6, 8, and 18 under 35 U.S.C. § 103 for the reasons the Examiner
presents and we give above.

Rejection II
Claim 2
Claim 2 recites an optic having surface structures configured to reduce
reflection of all wavelengths of electromagnetic radiation over a region of at
least 2.0 octaves within the electromagnetic spectrum region of 3,000 nm to
18,000 nm.
The Examiner finds Biricik teaches surface structures configured to
reduce reflection of all wavelengths of electromagnetic radiation over a
region of at least 2.0 octaves within the electromagnetic spectrum region of
3,000 nm to 18,000 nm to achieve antireflection in the infrared spectrum.
Final Act. 9; Biricik Figs. 2. The Examiner determines that it would have
been obvious to one of ordinary skill to modify Yeo to incorporate Biricik’s
teaching to achieve antireflection in the infrared spectrum. Final Act. 9.
Appellant contends that Biricik’s Figure 2 does not describe reduced
reflection of radiation due to a surface coating on a substrate but, instead,
teaches transmission of radiation through a germanium substrate. Appeal
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Br. 17. According to Appellant, the only factual teaching at Biricik Figure 2
is that transmission of radiation through the germanium substrate is lower
when the radiation arrives from an angle of 70° than when the radiation
arrives from an angle of 0°. Id.
These arguments do not persuade us of reversible error. As the
Examiner explains in the Answer, Yeo is relied upon to teach the reflectance
of the nanostructure while Biricik was cited to teach it was known to
configure reflective surfaces to reduce reflection of all wavelengths of
electromagnetic radiation as recited in claim 2. Ans. 18–19. Appellant’s
arguments do not address adequately the Examiner’s stated rejection. It is
well settled that nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed.
Cir. 1986); see also In re Keller, 642 F.2d 413, 425–26 (CCPA 1981)
(“[T]he test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”).
Accordingly, we AFFIRM the Examiner’s prior art rejection of claims
2, 7, and 19 under 35 U.S.C. § 103 for the reasons the Examiner presents
and we give above.

Rejections III and IV
Because Rejections III and IV involve claims that depend ultimately
from claim 1, we also AFFIRM these prior art rejections for the reasons the
Examiner presents and we give above.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 6, 8,
18
103 Yeo 1, 5, 6, 8,
18

2, 7, 19 103 Yeo, Biricik 2, 7, 19
3, 4 103 Yeo, Egi 3, 4
9, 10 103 Yeo, Jeong 9, 10
Overall
Outcome
1–10, 18,
19

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED