Jesse Frantz et al.

Patent Trials and Appeals Board

Oct 29, 2020

2019006894 (P.T.A.B. Oct. 29, 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.
14/701,857 05/01/2015 Jesse A. Frantz 102977-US2 1046
26384 7590 10/29/2020
NAVAL RESEARCH LABORATORY
ASSOCIATE COUNSEL (PATENTS)
CODE 1008.2
4555 OVERLOOK AVENUE, S.W.
WASHINGTON, DC 20375-5320
EXAMINER
TRAN, UYEN M
ART UNIT PAPER NUMBER
1726
NOTIFICATION DATE DELIVERY MODE
10/29/2020 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):
patent.docketing@nrl.navy.mil
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JESSE A. FRANTZ, JASON D. MYERS,
ROBEL Y. BEKELE, and JASBINDER S. SANGHERA

Appeal 2019-006894
Application 14/701,857
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 11–24.2 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—i.e., the named Inventors (Application Data Sheet filed
May 1, 2015 at 5). The Appellant identifies “The Government of the United
States, as represented by the Secretary of the Navy[,]” as the real party in
interest (Appeal Brief filed March 15, 2019 (“Appeal Br.”) at 2).
2 See Appeal Br. 3–6; Final Office Action entered July 12, 2018 (“Final
Act.”) at 3–20; Examiner’s Answer entered May 21, 2019 (“Ans.”) at 4–24.
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I. BACKGROUND
The subject matter on appeal relates to a method of making a
photovoltaic device in which a microstructured ZnO coating is provided as
an antireflective layer and scatters a large fraction of the incoming radiation
at a large angle, resulting in absorption that is closer to a p-n junction
(Specification filed May 1, 2015 (“Spec.”) ¶¶ 8–9; Drawings filed May 1,
2015, Fig. 1). Representative claim 11 is reproduced from the Claims
Appendix to the Appeal Brief, as follows:
11. A method of making a photovoltaic device, comprising:
coating a substrate with a p-type layer;
depositing an n-type layer on the p-type layer, forming a
p-n junction;
depositing a layer of ZnO on the n-type layer;
depositing a layer of aluminum-doped ZnO (AZO) on the
ZnO;
depositing a continuous top layer of ZnO on the AZO; and
etching the top ZnO layer to form a textured, continuous
ZnO top layer comprising subwavelength surface structures,
wherein the textured, continuous ZnO top layer forms
antireflective surface structures on the AZO layer and scatters
incoming light, increasing absorption of scattered light close to
the p-n junction.
(Appeal Br. 8 (emphasis added)). Claim 21, the only other independent
claim on appeal, recites the same disputed limitations highlighted above in
reproduced claim 11 (id. at 8–9).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected under 35 U.S.C. § 103 as follows:
A. Claims 11–14 and 19–24 as unpatentable over Cho et al.3

3 US 2013/0048074 A1, published February 28, 2013.
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(“Cho”), Den Boer et al.4 (“Den Boer”), and Yeo et al.5
(“Yeo”);
B. Claims 15 and 16 as unpatentable over Cho, Den Boer, Yeo,
and Dhere et al.6 (“Dhere”);
C. Claim 17 as unpatentable over Cho, Den Boer, Yeo, and Sano;7
D. Claims 18 and 22 as unpatentable over Cho, Den Boer, Yeo,
and Adachi et al.8 (“Adachi”);
E. Claims 11–14 and 19–24 as unpatentable over Cho, Ohyama et
al.9 (“Ohyama”), Den Boer, and Yeo;
F. Claims 15 and 16 as unpatentable over Cho, Ohyama, Den
Boer, Yeo, and Dhere;
G. Claim 17 as unpatentable over Cho, Ohyama, Den Boer, Yeo,
and Sano; and
H. Claims 18 and 22 as unpatentable over Cho, Ohyama, Den
Boer, Yeo, and Adachi.
(Ans. 4–24; Final Act. 3–20).

4 US 2008/0178932 A1, published July 31, 2008.
5 US 2013/0078750 A1, published March 28, 2013.
6 US 2007/0257255 A1, published November 8, 2007.
7 US 6,211,454 B1, issued April 3, 2001.
8 US 2012/0097244 A1, published April 26, 2012.
9 WO 2013/179529 A1, published December 5, 2013. The Examiner relies
on US 2015/0047701 A1, published February 19, 2015, as an English
language equivalent (Ans. 13). Therefore, our citations to this reference are
to the US document.
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III. DISCUSSION
1. Grouping of Claims
The Appellant argues all rejections and claims together under one sub-
heading, focusing only on the independent claims (Appeal Br. 3–6).
Therefore, we confine our discussion to claim 11, which we select as
representative. 37 C.F.R. § 41.37(c)(1)(iv). Pursuant to the rule, all other
claims stand or fall with claim 11.
2. The Examiner’s Position
With respect to Rejections A through D, the Examiner finds that Cho
describes a method for manufacturing a thin film solar cell including some
of the steps recited in claim 11 (Ans. 4–5; Final Act. 3–4). The Examiner
acknowledges, however, that Cho does not disclose depositing a ZnO top
layer and etching the ZnO top layer to form a textured, continuous ZnO top
layer, as required by claim 11 (Ans. 5; Final Act. 4). Relying on Den Boer,
which the Examiner finds as teaching a transparent electrode made of ZnO
having a textured surface, the Examiner concludes that “[i]t would have
been obvious to a person of ordinary skill in the art . . . to deposit[] the
transparent conductive layer 3a of Den Boer . . . on top of the transparent
electrode of Cho . . . for reducing reflection . . . [and] thus improve
efficiency” (Ans. 5; Final Act. 4) (citing Den Boer Fig. 1 and ¶¶ 28, 33–34;
emphasis removed). Additionally, the Examiner relies on Yeo for the
etching step and concludes that “[i]t would have been obvious to a person of
ordinary skill in the art . . . to texture the top ZnO layer of modified Cho . . .
by [using the] etching method of Yeo . . . for simple process, short process
time, low cost and easy process control [sic]” (Ans. 5; Final Act. 4) (citing
Yeo ¶ 11; emphasis removed).
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With respect to Rejections E through H, the Examiner finds further
that Ohyama teaches a “transparent conductive layer 38 being made of TCO
[transparent conductive oxide] deposit[ed] on [a] TCO layer 36 wherein the
transparent electrode comprises continuous subwavelength surface
(texture[d] surface) structures . . . and the layer 38 being function as
antireflection film [sic] ” (Ans. 14; Final Act. 13) (citing Ohyama Fig. 2 and
¶¶ 34, 39; emphasis removed). The Examiner concludes that “[i]t would
have been obvious to a person of ordinary skill in the art . . . to deposit[] the
transparent conductive layer 38 of Ohyama . . . on top of the transparent
electrode of Cho . . . for reducing reflection . . . [and] thus improve
efficiency” (Ans. 14; Final Act. 13) (emphasis removed). The Examiner
states that although Cho and Ohyama do not disclose a transparent
conductive layer made of ZnO, Den Boer teaches that ZnO is a transparent
conductive layer (id.).
3. The Appellant’s Contentions
The Appellant does not dispute the Examiner’s findings regarding
Cho’s scope and content and the differences between it and claim 11’s
subject matter (Appeal Br. 4). Rather, the Appellant contends that the prior
art “references do not disclose the limitations [in claim 11] of depositing a
continuous top layer of ZnO on the AZO and etching the top ZnO layer to
form a textured, continuous ZnO top layer” (id.). Specifically, the Appellant
argues that “[t]he electrode 3 of Den Boer is not a top layer, as it is provided
below the glass substrate 1” (id.). As for Ohyama, the Appellant argues that
“Ohyama does not disclose or suggest the use of ZnO as the top transparent
layer 38, nor does it disclose or suggest that the top transparent layer 38 be
etched” (id.). As for Yeo, the Appellant argues that although the reference
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teaches etching to provide a subwavelength nanostructure for antireflection,
it teaches using a ZnO layer as a mask and not a continuous, textured ZnO
top layer (id. at 5).
4. Opinion
For the reasons below, we agree with the Appellant that the Examiner
Rejections A through D are not well-founded. We conclude, however, that
the Appellant’s arguments are insufficient to identify reversible error in
Rejections E through H. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Den Boer teaches a photovoltaic device in which a front electrode 3
has a textured surface and may contain a single or multilayers of a
transparent conductive oxide such as tin oxide or zinc oxide (Den Boer Fig.
1 and ¶ 28). But, as the Appellant points out (Appeal Br. 4), Den Boer’s
front electrode 3 is not a “top layer,”10 as recited in claim 11, because it is
provided below a glass substrate 1 (Den Boer Fig. 1; ¶ 28 (requiring both a
glass substrate 1 and front electrode 3 to effect improved efficiency in terms
of light absorption)). Cf. In re Suitco Surface, Inc., 603 F.3d 1255, 1260
(Fed. Cir. 2010).
Therefore, we do not sustain Rejections A through D.
Rejections E through H stand on a different footing. Ohyama teaches
a solar cell including a transparent layer 38, which may be conductive or
insulative, that is antireflective and protective of the light-receiving surface
of the solar cell (Ohyama Fig. 2 and ¶¶ 9, 39). As shown in Ohyama’s

10 The Examiner states that claim 11 “requires [a] top layer, not the topmost
layer” (Ans. 22). But the difference between “top” and “topmost” is not
readily apparent on this record. See https://www.merriam-
webster.com/dictionary/top; https://www.merriam-
webster.com/dictionary/topmost.
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Figure 2, the transparent (antireflective) film 38 is textured. Although
Ohyama does not specifically identify ZnO as a material for the transparent
layer 38, it does not place any limitations as to the materials that can make
up this layer (id. ¶ 39). Indeed, it actually teaches that a layer made of ZnO
and a dopant, which is not excluded by claim 11, is in fact a transparent
conductive layer (id. ¶ 38). Given Ohyama’s teachings, taken together with
Den Boer’s additional disclosure that ZnO is a transparent conductive layer
(Den Boer ¶ 28), we discern no reversible error in the Examiner’s
determination that a person having ordinary skill in the art would have been
prompted to provide a textured ZnO transparent conductive layer on top of
Cho’s transparent electrode with a reasonable expectation of providing an
antireflective, protective film that improves efficiency.
As for the etching step to provide the textured surface, we find no
reversible error in the Examiner’s finding that Yeo, although directed to
materials other than ZnO, demonstrates that etching is a simple technique
that may be used to provide a textured surface (Ans. 23 (citing Yeo ¶ 11)).
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (“[I]f a technique
has been used to improve one device, and a person of ordinary skill in the art
would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.”).
For these reasons, and those well-stated by the Examiner, we uphold
Rejections E through H.

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IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
11–14, 19–24 103 Cho, Den Boer, Yeo 11–14, 19–24
15, 16 103 Cho Den Boer, Yeo,
Dhere
15, 16
17 103 Cho, Den Boer, Yeo,
Sano
17
18, 22 103 Cho, Den Boer, Yeo,
Adachi
18, 22
11–14, 19–24 103 Cho, Ohyama, Den
Boer, Yeo
11–14, 19–
24

15, 16 103 Cho, Ohyama, Den
Boer, Yeo, Dhere
15, 16
17 103 Cho, Ohyama, Den
Boer, Yeo, Sano
17
18, 22 103 Cho, Ohyama, Den
Boer, Yeo, Adachi
18, 22
Overall
Outcome
11–24

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

AFFIRMED