Ex Parte Agostinelli et al

Patent Trials and Appeals Board

Apr 16, 2019

11855988 - (D) (P.T.A.B. Apr. 16, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/855,988 09/14/2007
20995 7590 04/18/2019
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
FIRST NAMED INVENTOR
Guido Agostinelli
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.
IMEC384.001Cl 8022
EXAMINER
TRINH, THANH TRUC
ART UNIT PAPER NUMBER
1726
NOTIFICATION DATE DELIVERY MODE
04/18/2019 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GUIDO AGOSTINELLI, GUY BEAUCARNE,
and PATRICK CHOULAT
Appeal2018-003129
Application 11/855,988
Technology Center 1700
Before KAREN M. HASTINGS, GRACE KARAFFA OBERMANN, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection under 35 U.S.C. § 103(a) of claims 1, 2, 4--8, 10-20, 22, 26,
and 27 as unpatentable over at least the combined prior art of Rohatgi (US
2005/0189015 Al, pub. Sept. 1, 2005), Hartley (US 2005/0189013 Al, pub.
Sept. 1, 2005), and Uematsu (US 6,461,947 Bl, iss. Oct. 8, 2002). 2
We have jurisdiction over the appeal under 35 U.S.C. § 6(b ).
1 The real party in interest is identified as "Interunisersitair Microelektronica
Centrum (IMEC)" (Appeal Br. 4).
2 The Examiner added various references to this combination in the
rejections of various dependent claims (Final Action 8-12).
Appeal2018-003129
Application 11/855,988
We affirm.
CLAIMED SUBJECT MATTER
Claim 1 is representative ( emphasis added to highlight key
disputed limitations):
1. A method of producing a photovoltaic device
compnsmg:
i. providing a semiconductor substrate having
a front main surface for collecting impinging light and a
rear surface opposite to the front main surface;
ii. depositing a dielectric layer or a wide
bandgap semiconductor layer on and in contact with the
rear surface, the dielectric layer having a thickness larger
than about 100 nm;
111. depositing a passivation layer comprising
hydrogenated SiN on and in contact with a top surface of
the dielectric layer or the wide bandgap semiconductor
layer, wherein the SiN as deposited is hydrogenated SiN;
and
iv. after depositing the passivation layer,
forming back contacts through the dielectric layer or
wide bandgap semiconductor layer and the passivation
layer,
wherein forming the back contacts comprises:
forming holes through the dielectric layer or
the wide bandgap semiconductor layer and though
the passivation layer,
after forming the holes, depositing a metal
contact material into the holes, and
after depositing the metal contact material,
subjecting the metal contact material to a temperature
between 600°C and 1000°c, thereby improving
passivation of an interface between the semiconductor
substrate and the dielectric layer or the wide bandgap
semiconductor layer.
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Appeal2018-003129
Application 11/855,988
OPINION
Upon consideration of the evidence in this appeal and each of
Appellants' contentions as set forth in the Appeal Brief filed March 15,
201 7, we determine that Appellants have not demonstrated reversible error
in the Examiner's rejection (e.g., Ans. 2-19 (mailed Nov. 3, 2017)). In re
Jung, 637 F.3d 1356, 1365---66 (Fed. Cir. 2011) (explaining the Board's
long-held practice of requiring Appellants to identify the alleged error in the
Examiner's rejection). We sustain the rejection for the reasons expressed by
the Examiner in the Final Office Action and the Answer. We add the
following for emphasis.
It has been established that "the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex
Inc., 550 U.S. 398,418 (2007); see also In re Fritch, 972 F.2d 1260, 1264--
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
Appellants argue that 1) Rohatgi does not teach or suggest the
depositing step since the oxide is grown (Appeal Br. 13); 2) Hartley's stack
in not equivalent to the stacks recited in claims 1 and 2 because Hartley does
not teach or suggest hydrogenated SiN and Hartley lists numerous choices
for the antireflective coating (Appeal Br. 15, 16); 3) Hartley does not teach
or suggest the thickness "larger than about 100 nm" recited in claims 1 and 2
(Appeal Br. 17); and, 4) there is no motivation to use a stack as exemplified
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Appeal2018-003129
Application 11/855,988
in Hartley in Rohatgi (Appeal Br. 18, 19). These arguments are not
persuasive for the detailed reasons set out by the Examiner (Ans. 3-15; no
responsive brief has been filed to address the Examiner's detailed responses
to arguments made in the Appeal Brief).
Notably, Appellants do not sufficiently address the Examiner's
position that
1) the alternatives of growing an oxide layer or depositing one, along
with the attendant pros and cons to each approach, are well known as
exemplified by the applied prior art (and further, a "depositing" step as
recited herein encompasses Rohatgi' s broader description of coating the
layer (Rohatgi ,r 163)) (Ans. 4--6);
2) contrary to Appellants' position, Hartley does indeed suggest
hydrogenated SiN because the SiN is produced in an atmosphere with
ammonia (Ans. 7; Hartley ,r,r 21, 44, 45), and there is a very limited number
of possibilities in the applied prior art combination needed to arrive at the
dielectric layer and passivation layer recited in claims 1 and 2 which are
amply suggested by Rohatgi/Hartley to be desirable for a photovoltaic
device (solar cell) (Ans. 6-8, 11), see Merck & Co. v. Biocraft Labs., Inc.,
874 F.2d 804, 807 (Fed. Cir. 1989) (holding that the prior art's disclosure of
over 1200 possible combinations rendered all possible formulations
obvious);
3) Hartley does describe or suggest a layer having a thickness larger
than 100 nm (Ans. 12, 13), 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
primafacie case of obviousness."); and
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Appeal2018-003129
Application 11/855,988
4) there is ample reason to combine the applied prior art since the
modification is "nothing more than a mere selection of functional equivalent
antireflection/passivation stacks[s] recognized in the art" (Ans. 14). KSR
Int'! Co., 550 U.S. at 421 ("A person of ordinary skill is also a person of
ordinary creativity, not an automaton."); Ball Aerosol and Specialty
Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009)
(under the flexible inquiry set forth by the Supreme Court, the PTO must
take account of the "inferences and creative steps," as well as routine steps,
that an ordinary artisan would employ).
A preponderance of the evidence also supports the Examiner's
obviousness determination of dependent claim 16 (Ans. 16; Appeal Br. 23),
as well as the other grounds of rejections wherein Appellants do not present
any additional arguments to those already made (Appeal Br. 24--26).
Appellants further urge that the Specification data (Fig. 4) rebut any
prima facie case of obviousness that may have been established by evincing
the criticality of the claimed dielectric layer ( claim 1) or sub-stack ( claim 2)
being greater than about 100 nm (Appeal Br. 20-22).
It is well established that the burden of showing unexpected results
rests on the person who asserts them by establishing that the difference
between the claimed invention and the closest prior art was an unexpected
difference. It is not enough for the Appellants to show that the results in the
compared examples differ. The difference must be shown to be an
unexpected difference. See In re Freeman, 474 F.2d 1318, 1324 (CCPA
1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Further, the
showing of unexpected results must be commensurate in scope with the
claims. See In re Peterson, 315 F.3d 1325, 1330-31 (Fed. Cir. 2003).
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Appeal2018-003129
Application 11/855,988
Appellants have not shown reversible error in the Examiner's findings that
the evidence relied upon by Appellants is not compared to the closest prior
art and is also not commensurate in scope with the breadth of any of the
claims on appeal; therefore, there is not persuasive evidence of
nonobviousness (Ans. 15, 16 (Examiner points out that only claims 6 and 7
require use of a low quality dielectric as exemplified in the Spec. Fig. 4 data;
moreover, claims 6 and 7 are rejected using Mardesich (US 4,703,553) in
addition to the basic combination of Rohatgi, Hartley, and U enmatsu, and
Mardesich exemplifies benefits using such low quality dielectrics with a
thickness from 50 to 300 nm for solar cells)).
After weighing all the evidence anew, we determine that a
preponderance of the evidence supports the Examiner's obviousness
determination of all the claims on appeal.
DECISION
The decision of the Examiner 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)(l)(iv).
AFFIRMED
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