Ex Parte Myers et al

Patent Trial and Appeal Board

Jun 22, 2018

14026130 (P.T.A.B. Jun. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/026,130 09/13/2013
26384 7590 06/22/2018
NAVAL RESEARCH LABORATORY
AS SOCIA TE COUNSEL (PA TENTS)
CODE 1008.2
4555 OVERLOOK A VENUE, S.W.
WASHINGTON, DC 20375-5320
FIRST NAMED INVENTOR
Jason D. Myers
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.
101739-US2 1833
EXAMINER
MERSHON, JAYNE L
ART UNIT PAPER NUMBER
1721
MAILDATE DELIVERY MODE
06/22/2018 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 JASON D. MYERS, JESSE A. FRANTZ, ROBEL Y. BEKELE,
JASBINDER S. SANGHERA, and ISHW ARD. AGGARWAL
Appeal2017-009623
Application 14/026, 13 0
Technology Center 1700
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
MONTE T. SQUIRE, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL 1
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner's decision finally rejecting claims 1-8 under 35 U.S.C. § 103(a) as
1 Our decision refers to the Specification (Spec.) filed September 13, 2013,
the Examiner's Final Office Action (Final) dated July 14, 2016, Appellants'
Appeal Brief (Br.) filed February 14, 2017, and the Examiner's Answer
(Ans.) dated April 14, 2017.
2 According to Appellants, the real party in interest is The Government of
the United States of America, as represented by the Secretary of the
Navy. Br. 2.
Appeal2017-009623
Application 14/026,130
unpatentable over Stanbery (US 2003/0054663 Al, published Mar. 20,
2003). 3 We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF THE CASE
The invention relates to a method for forming a photovoltaic device
(claim 1 ). Appellants disclose that Cu(In1-xGax)Se2, where 0:Sx2:1, ("CIGS")
is a promising material for thin film photovoltaics with power conversion
efficiencies of approximately 20% (Spec. i-f 3). Appellants further disclose
that thin CIGS films are typically deposited by thermal co-evaporation and
by sputtering precursors followed by selenization (id.). Appellants also
teach that while it is also possible to directly sputter the quaternary
compound without post-selenization, this process does not natively form a
desirable microstructure of dense, large grains without extensive post
processing and annealing (id. i-fi-13, 4). Therefore, Appellants deposit at least
one thin interfacial film to wet and improve the film quality of subsequently
deposited CIGS films (id. i-f 5). According to Appellants, the use of such
wetting layers can eliminate the need for post-deposition selenization and/or
annealing, and permit lower-cost deposition, such as quaternary sputtering
(id. ,-r 6).
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A method for forming a photovoltaic device, comprising:
depositing at least one wetting layer onto a substrate
wherein the wetting layer is less than or equal to 100 nm; and
3 Pending claims 9--16 have been withdrawn from consideration by the
Examiner and are not before us in this appeal. Final 2.
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Appeal2017-009623
Application 14/026,130
depositing a photovoltaic material onto the wetting layer
wherein the wetting layer interacts with the photovoltaic
material, wherein the photovoltaic material comprises a copper
indium gallium diselenide (CIGS) material or a variation of a
copper indium gallium diselenide (CIGS) material wherein a
CIGS component is replaced or supplemented with sulfur,
tellurium, aluminum, silver, or any combination thereof.
ANALYSIS
The dispositive issue before us is whether Appellants have identified
reversible error in the Examiner's finding that Stanbery deposits a
photovoltaic material onto the wetting layer, wherein the photovoltaic
material comprises CIGS or a CIGS variant. After review of the opposing
positions articulated by Appellants and the Examiner, the applied prior art,
and Appellants' claims and Specification disclosures, we determine that the
Appellants' arguments are insufficient to identify reversible error in the
Examiner's obviousness rejections. In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011 ). Accordingly, we affirm the stated obviousness rejection for
substantially the fact findings and the reasons set forth by the Examiner in
the Examiner's Answer. We offer the following for emphasis only.
Appellants argue claims 1 and 8 separately, but otherwise argue the
appealed claims together. However, Appellants' argument as to claim 8
appears to be based on a limitation that the photovoltaic material is applied
by sputtering (Br. 5). As this limitation is set forth in claim 7, not claim 8,
we will treat Appellants' argument as directed to claim 7 (see Ans. 10-11).
We address Appellants' arguments as to claims 1 and 7 below. Claims 2-6
and 8 stand or fall with claim 1 from which they depend. 37 C.F.R.
§ 41.37(c)(l)(iv) (2016).
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Appeal2017-009623
Application 14/026,130
Claim 1
The Examiner finds Stanbery discloses a method for forming a
photovoltaic device substantially as recited in claim 1, wherein a CIGS
material is deposited on a wetting layer formed on a molybdenum electrode
(Ans. 3). In this regard, the Examiner finds that Stanbery's process of
depositing a CIGS material onto a wetting layer comprises sputtering a first
CIGS precursor onto a wetting layer formed on a substrate, sputtering a
second CIGS precursor layer on a release layer formed on a tool, bringing
the layers together to form a deposited CIGS layer, and removing the tool
and release layer (id. at 7).
Appellants argue that Stanbery fails to disclose or suggest the
deposition of a CIGS (or CIGS variant) material onto a wetting layer as
recited in claim 1 (Br. 3). Appellants assert that Stanbery teaches a method
of forming layers, films, or coatings on a surface wherein two precursor
layers are attached to two different surfaces, which are then placed into
contact with each other to interact and produce a composition layer (id.).
Appellants concede that Stanbery's final formed layer may be a CIGS layer
(id.). However, Appellants assert that the first precursor layer is formed of
CuSe, not CIGS (id. at 3--4). Appellants urge that only after the second
precursor layer is brought into contact with the first precursor layer is a
CIGS layer formed through an interaction between the two precursor layers
(id. at 4). Appellants further urge that Stanbery's wetting or adhesion layer
is not intended to serve as a crystallographic modification layer (id.).
Appellants attempt to contrast the present disclosed method from
Stanbery by asserting that the present method is a two-step process with the
first step including deposition of a wetting layer and the second step
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Appeal2017-009623
Application 14/026,130
including deposition of a photovoltaic CIGS (or CIGS variant) material onto
the wetting layer, wherein the wetting layer "alter[ s] the nucleation behavior
and end grain structure of the photovoltaic material" (id. at 3). Appellants
further urge that the present invention involves deposition of the already
formed quaternary material directly onto the electrode surface that has been
modified with the wetting material (id. at 4).
Initially, we note that Appellants are arguing limitations that are not
recited in claim 1. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998)
("the name of the game is the claim"); In re Self, 671 F.2d 1344, 1348
(CCPA 1982) ("Many of appellant's arguments fail from the outset because,
as the solicitor has pointed out, they are not based on limitations appearing
in the claims."). For example, claim 1 does not recite any purpose or
function for the wetting layer nor does claim 1 limit in any way the step of
depositing a CIGS or CIGs variant photovoltaic material onto the wetting
layer. Although claim 1 recites that the wetting layer "interacts" with the
photovoltaic material, interaction does not impose any specific limitation on
the wetting layer, e.g., the wetting layer need not alter the nucleation
behavior and end grain structure of the photovoltaic material as argued by
Appellants.
Turning to the dispositive issue before us on appeal, we note that
Appellants do not present a definition for the term, "deposit," which is at the
core of the dispute here. We note that the ordinary meaning of "deposit" is
"to lay down" or "to let fall (something, such as sediment)."4 Although
4 See https://www.merriam-webster.com/dictionary/deposit, last visited June
19,2018.
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Application 14/026,130
Appellants disclose thermal evaporation and sputtering as examples of
processes of depositing, we find no disclosure specifically limiting "deposit"
to one of these processes (see also Ans. 10). Sjolund v. Mus land, 847 F.2d
1573, 1581 (Fed. Cir. 1988) ("[W]hile it is true that claims are to be
interpreted in light of the specification and with a view to ascertaining the
invention, it does not follow that limitations from the specification may be
read into the claims .... "); see also In re Am. Acad. of Sci. Tech. Ctr., 367
F.3d 1359, 1369 (Fed. Cir. 2004) ("We have cautioned against reading
limitations into a claim from the preferred embodiment described in the
specification, even if it is the only embodiment described, absent clear
disclaimer in the specification."). Accordingly, we determine that the
broadest reasonable interpretation of "deposit a photovoltaic material onto
the wetting layer" includes any deposition process that lays, places, or lets
fall the photovoltaic material onto the wetting layer, and that this deposition
process can include multiple steps.
Applying this interpretation to Stanbery, we find, like the Examiner
(Ans. 10), that Stanbery's process of sputtering the two precursor layers
separately, one directly on the wetting layer and one over a release film on a
separate tool, followed by a step of laying or placing the second precursor
layer together in contact with the first precursor layer thereby forming an
absorber layer comprising CIGS material, is a deposition of photovoltaic
CIGS material onto the wetting layer as recited in claim 1. Therefore, we
sustain the Examiner's obviousness rejection of claim 1. Because
Appellants do not argue dependent claims 2-6 and 8 separately, we likewise
sustain the Examiner's obviousness rejection of these claims.
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Application 14/026,130
Claim 7
Claim 7 depends from claim 1, and further requires that the
photovoltaic material is deposited by sputtering. The Examiner finds that
Stanbery's method for forming a photovoltaic device deposits the
photovoltaic material by sputtering (Ans. 6). Further, as the Examiner finds
(id. at 7) and Appellants concede (Br. 3, 5), Stanbery forms the precursor
layers by sputtering. Although Appellants argue that Stanbery's
photovoltaic material is formed by reacting the two precursor layers with
each other and, therefore, the photovoltaic material is not directly sputtered
onto the wetting layer (Br. 5), we note that claim 7 does not require that the
photovoltaic material is directly sputtered onto the wetting layer or that the
photovoltaic material is deposited solely by sputtering an already formed
quaternary compound of the photovoltaic material onto the wetting layer
(see Ans. 11). Self, 671 F.2d at 1348. Therefore, we sustain the Examiner's
obviousness rejection of claim 7.
DECISION
Upon consideration of the record, and for the reasons given above and
in the Examiner's Answer, the decision of the Examiner rejecting claims 1-8
under 35 U.S.C. § 103(a) as unpatentable over Stanbery is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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