Ex Parte McGlynn et al

Patent Trial and Appeal Board

Nov 26, 2012

11500053 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/500,053 08/07/2006 Daniel McGlynn 6401 (97967) 4027
7590 11/26/2012
Casey Toohey
Emcore Corporation
1600 Eubank Blvd. SE
Albuquerque, NM 87123
EXAMINER
BERNIER, LINDSEY A
ART UNIT PAPER NUMBER
1755
MAIL DATE DELIVERY MODE
11/26/2012 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 DANIEL MCGLYNN, PAUL R. SHARPS, ARTHUR
CORNFELD, and MARK A. STAN
__________

Appeal 2011-011592
Application 11/500,053
Technology Center 1700
____________

Before RICHARD E. SCHAFER, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

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Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
11-19, 21, and 22. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is said to be directed to a system for generating
electrical power from solar radiation that uses III-V compound
semiconductor solar cells in conjunction with reflector concentrators which
are connected in an array for unitary movement to track the sun (Spec.
para. [0003]; Fig. 1).
Claim 11 is illustrative:
11. A system for generating electrical power from solar
radiation comprising:
a III-V compound semiconductor solar cell including a
semiconductor body; a first solar subcell in said body having a
first band gap; a second solar subcell in said body disposed
adjacent said first subcell in said body and having a second
band gap smaller than said first band gap; a grading interlayer
composed of InGaAlAs and disposed adjacent said second
subcell in said body and having a third band gap greater than
said second band gap; and a third solar subcell disposed
adjacent said interlayer in said body and being lattice
mismatched with respect to said second subcell and having a
fourth band gap smaller than said third band gap;
a drive;
a concentrator for focusing sunlight on the solar cell;
a platform on which the solar cell and the concentrator
are mounted;
a solar tracker that stores solar angle data in a database,
processes the stored solar angle data and transmits control
signals to cause the platform to be continuously positioned by
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the drive both in azimuth and altitude angles so as to align the
concentrator with the rays of the sun as the sun traverses the
sky so that the rays of the sun are focused on the solar cell; and
an electrical circuit connected to said solar cell for
transferring electrical energy from said cell.
Appellants appeal the following rejections:
1. Claims 11-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lamb (US 5,374,317 issued Dec. 20, 1994) in view
of Wanlass (US 2006/0144435 A1 published July 6, 2006), Horton
(US 4,192,583 issued Mar. 11, 1980), and King
(US 2005/0274411 A1 published Dec. 15, 2005).
2. Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lamb in view of Wanlass, Horton, King and Mook
(US 2005/0051205 A1 published Mar. 10, 2005).
3. Claim 22 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Lamb in view of Wanlass, Horton, King and Gee
(US 2004/0261839 A1 published Dec. 30, 2004).

Appellants’ arguments focus on claims 11 and 15 of rejection (1) and
claim 22 of rejection (3) only (App. Br. 4-14). Appellants do not separately
argue claim 21 of rejection (2), instead relying on arguments made regarding
claim 11 (id. at 13). Therefore, claim 21 will stand or fall with our analysis
of the rejection of claim 11.

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REJECTIONS (1) AND (3)
ISSUES
1. Did the Examiner reversibly err in concluding that the combined
teachings of Lamb, Wanlass and King would have rendered obvious
the use of a grading interlayer composed of InGaAlAs as recited in
claim 11? We decide this issue in the negative.
2. Did the Examiner reversibly err in finding that Horton teaches a solar
tracker that stores solar angle data in a database as recited in claim
11? We decide this issue in the negative.
3. Did the Examiner reversibly err in determining that based on the
combined teachings of Lamb, Wanlass, King, and Horton the band
gap is a result-effective variable that would have been optimized to
1.5 eV as recited in claim 15? We decide this issue in the negative.
4. Did the Examiner reversibly err in finding that Gee’s solar cell
structure is analogous art to Lamb’s solar cell structure such that one
of ordinary skill in the art would have looked to Gee to arrive at the
claimed solar cell arrangement? We decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
Issue (1): Grading Inter Layer InGaAlAs of Claim 11
Appellants argue and rely on the Declaration of Paul R. Sharps
attached as Exhibit 1 to the Appeal Brief to establish that Wanlass teaches
using GaInP or AlGaInAsP semiconductor materials which are not the same
or equivalent to the claimed InGaAlAs grading layer (App. Br. 4- 6).
Appellants contend that Wanlass uses phosphorus as part of the
semiconductor material in every example and teaches that the phosphorus
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imparts certain properties to the semiconductor material (id. at 5-6).
Appellants argue that while King teaches an InGaAlAs semiconductor layer
as relied upon by the Examiner, there are many combinations of the
elements that compose the InGaAlAs layer and there is no teaching of the
particularly claimed lattice matching or band gap for that layer (id. at 8).
Appellants contend that Wanlass teaches away from using King’s
aluminum-containing semiconductor material because Wanlass discloses
that aluminum getters oxygen and water which are detrimental to the solar
cell performance (id. at 9-10). Appellants argue that the Examiner’s reason
for combining King’s semiconductor layer with Lamb and Wanlass are
based on generic advantages of a graded layer and are not tied directly to the
AlGaInAs layer of King (id. at 10).
We have fully considered Appellants’ arguments and we find that the
preponderance of the evidence favors the Examiner’s conclusion of
obviousness. The Examiner’s rejection may be found on pages 5-12 and 21-
24 of the Answer. The Examiner finds that one of ordinary skill in the art
would have understood from Wanlass’ teachings that the lattice parameters
and band gap may be changed by varying the amount of each element
composing the layer (Ans. 22). Appellants do not respond to this analysis of
the Examiner. See Reply Br. 1-3.
Based on this uncontested finding of the Examiner, we agree that it
would have been obvious to manipulate the amount of each element used to
make the semiconductor layer to arrive at one having the lattice constant and
band gap as recited in claim 11. Indeed, the Examiner relies on Wanlass to
teach a solar cell having the semiconductor layers arranged with the lattice
constant and band gaps as recited in claim 11 (Ans. 5). Accordingly,
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contrary to Appellants’ argument, the Examiner reasonably determines
based on the teachings of Lamb, King and Wanlass that one of ordinary skill
would have modified King’s AlGaInAs layer to have the desired lattice
constant and band gap to comport with Wanlass’s solar cell structure.
Appellants’ argument that King’s AlGaInAs layer does not necessarily have
the desired band gap or lattice constant fails to address the Examiner’s
optimization of a result-effective variable position.
Appellants’ argument that Wanlass’ teaching to use only phosphorus-
containing semiconductor materials and that aluminum-containing
semiconductor materials are not desired amounts to a teaching away from
King’s InGaAlAs material is not persuasive. While Wanlass exemplifies
using phosphorus-containing materials and teaches properties attributable to
the use of phosphorus, Wanlass further discloses that the exemplified
embodiments are not exclusive subcell materials (Wanlass para. [0028]).
Wanlass’ teachings regarding aluminum-containing semiconductor materials
do not amount to a teaching away. As the Examiner finds, Wanlass
discloses a mere preference for aluminum-free materials and exemplifies
using aluminum-containing semiconductor material (Ans. 23).
Appellants’ argument that the Examiner’s reason for combining
King’s AlGaInAs layer is based on too general of a teaching is not
persuasive. Rather, King discloses in paragraph 20 the advantages of using
a graded layer which is followed in the subsequent paragraph by a
description of the suitable embodiments employing graded layer (King,
paras. [0020]-[0021]). King’s paragraph [0021] discloses a graded layer of
AlGaInAs which would reasonably be understood from King’s disclosure as
possessing and imparting the desired properties to the solar cell.
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Issue (2): Database of Claim 11
Appellants argue that Horton fails to disclose that the solar angle data
is stored in a database (App. Br. 11; Reply Br. 4). Appellants contend that a
“stored program” is not solar angle data stored in a database. App. Br. 11;
Reply Br. 4. Appellants contend that Horton’s sun tracker may use
photodetectors or other optical components to detect the position of the sun.
App. Br. 11; Reply Br. 4. Appellants do not contest the Examiner’s reason
for combining Horton’s sun tracker system with Lamb as modified by
Wanlass and King. App. Br. 11; Reply Br. 4.
The Examiner finds that a “database” is a “comprehensive collection
of related data organized for convenient access, generally in a computer”
(Ans. 25). Appellants do not dispute this definition. The Examiner finds
that Horton’s disclosure of transmitting sun angle data from the central
computer means that the data must inherently be stored in a database in the
central computer. Id. We agree.
The Examiner’s findings are reasonably supported by Horton’s
disclosures. Horton’s disclosure that during “automatic” control mode the
sun angle data is sent from the central computer, in our view, indicates that
the data is stored as a collection of related data in the central computer for
transmitting to the other components of the sun tracker system. While
Appellants contend that the sun angle data in Horton may be provided by
sensors, that does not change the fact that data is sent through a central
computer which must organize the data for easy retrieval and transmission
when requested (i.e., a database).

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Issue (3): Claim 15
Appellants argue that Wanlass teaches that the band gap of the buffer
layer is 1.7 or 1.9 eV which would not have taught or suggested Appellants’
claimed band gap of 1.5 eV (App. Br. 11-13; Reply Br. 4-5). Appellants
contend that Wanlass teaches that arbitrary selection of materials and band
gaps is not possible if one wishes to obtain a device that functions as a solar
cell (App. Br. 12).
The Examiner finds that Wanlass teaches band gap of the
compositionally graded layer may include band gaps of 1.4 eV and 1.7 eV
(Ans. 28). The Examiner finds that Wanlass teaches the compositionally
graded layer may be adjusted to accommodate these band gap values. Id.
The Examiner finds that the value of the band gap is a result effective
variable that would have been optimized to arrive at the claimed 1.5 eV band
gap for the graded layer. Id.
The preponderance of the evidence favors the Examiner’s obviousness
conclusion. Appellants do not respond to the Examiner’s finding that the
band gap is a result-effective variable (Reply Br. 4-5). We understand the
Examiner’s rejection to be that the composition of the graded layer would
have been optimized to arrive at a suitable band gap for the graded layer,
such as the claimed 1.5 eV, relative to the other layers as taught by Wanlass.
Appellants’ argument that Wanlass favors band gaps greater than 1.5
eV (e.g., 1.7 eV) is not persuasive. Rather, the portion of Wanlass’
paragraph 34 cited by Appellants on page 12 of the principal Brief indicates
that the band gap of the graded layer must be greater than 1.7 eV for the
particular embodiment because the first subcell of the solar cell has a band
gap of 1.7 eV. In other words, Wanlass teaches that graded layer band gap
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is suitably tuned based on the adjacent subcell’s band gap. The Examiner’s
result-effective variable analysis addresses this teaching and reasons that the
graded layer would have been constructed to have a lower band gap such as
1.5 eV where the adjacent subcell’s band gap is suitably tuned. Appellants’
arguments do not specifically address this determination.
On this record and for the above reasons, we affirm the Examiner’s
§ 103 rejection of claims 11-19 and 21.

Issue (4): Claim 22
Appellants argue that Gee is directed to silicon backed solar cells
which are different than III-V semiconductor solar cell material which
utilizes entirely different epitaxial growth and processing technologies (App.
Br. 14). Appellants contend that a person of ordinary skill in the art would
not have turned to Gee’s disclosure when considering solar cells based on
III-V semiconductors. Id.
The Examiner finds that one of ordinary skill in the art would have
understood that Gee’s back contacts for the solar cell are applicable to any
type of solar cell (Ans. 30). We agree.
While Appellants contend that III-V and silicon semiconductors have
different processes and growth, Appellants do not respond to the reasonable
finding of the Examiner that Gee’s use of back contacts on solar cells are
applicable to any type of solar cell. The Examiner’s rejection is not based
on the chemistry of growing different semiconductor layers from Gee on a
III-V semiconductor. Rather, the Examiner’s rejection is premised on
incorporating back contact structures into Lamb’s solar cell structure (id. at
13-14).
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On this record, we affirm the Examiner’s § 103 rejection of claim 22.

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.

ORDER
AFFIRMED

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