Ex Parte Seo et al

Patent Trials and Appeals BoardMar 28, 2019

13094940 - (D) (P.T.A.B. Mar. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/094,940 04/27/2011 126518 7590 04/01/2019 Goldilocks Zone IP Law 4208 Evergreen Lane, Suite 232 Annandale, VA 22003 FIRST NAMED INVENTOR Kyoung Jin Seo 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. 0036-0001 1613 EXAMINER TRAN,UYENM ART UNIT PAPER NUMBER 1726 NOTIFICATION DATE DELIVERY MODE 04/01/2019 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): sckwon@gzonelaw.com docket@ gzonelaw .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KYOUNG JIN SEO and MEEMONGKOLKIAT VICHAI Appeal2017-007162 Application 13/094,940 Technology Center 1700 Before MICHAEL P. COLAIANNI, WESLEY B. DERRICK, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. DERRICK, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF CASE Appellants2 seek review under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1, 7-10, 20-22, and 25 under 35 U.S.C. Â§ 103(a). We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 We refer to the Specification filed April 27, 2011 ("Spec."), the Final Office Action mailed January 21, 2016 ("Final Act."), the Appeal Brief filed August 15, 2016 ("App. Br."), and the Examiner's Answer dated December 28, 2016 ("Ans."). 2 According to Appellants, Intellectual Keystone Technology LLC is the real party in interest. App. Br. 3. Appeal2017-007162 Application 13/094,940 CLAIMED SUBJECT MATTER Appellants' invention relates to a solar cell. Spec., Abstract, 2:9-11. Claim I-the sole independent claim-is illustrative: 1. A solar cell comprising: a base layer including a first conductive type impurity element from a first Group of elements, an upper surface, and a lower surface opposing the upper surface; an emitter layer formed on the upper surface of the base layer and including a second conductive type impurity element from a second Group of elements different from the first Group; a front electrode connected to the emitter layer; a second passivation layer comprising aluminum oxide formed on the lower surface of the base layer that guides carriers generated by a photoelectric effect to the front electrode; a first passivation layer comprising a silicon nitride group compound formed on the second passivation layer, wherein the refractive index of the first passivation layer is equal to or less than about 1.96 that guides carriers generated by the photoelectric effect to the front electrode; and a rear electrode formed on the first passivation layer and connected to the base layer through the second passivation layer and the first passivation layer. App. Br. 14 (Claims App'x). 2 Appeal2017-007162 Application 13/094,940 THE REJECTIONS Claims 1, 7-9, 21, 22, and 25 stand rejected under 35 U.S.C. Â§ 103 over Rohatgi 3 in view of Park4 and Isaka. 5, 6 Claim 10 stands rejected under 35 U.S.C. Â§ 103 over Rohatgi, Park, Isaka, and U ematsu. 7 Claim 20 stands rejected under 35 U.S.C. Â§ 103 Rohatgi, Park, Isaka, and Duerinckx. 8 DISCUSSION Upon consideration of the evidence and opposing contentions of Appellants and the Examiner, we are not persuaded that the Examiner erred harmfully in rejecting the claims for obviousness over the cited prior art. We add the following. Appellants argue the claims subject to rejection on the basis of claim 1 and dependency from claim 1, including claims 10 and 20. App. Br. 6-13. Obviousness over Rohatgi, Park, and Isaka Rohatgi relates to a thin silicon solar cell and its fabrication. Rohatgi, Abstract. The Examiner relies on Rohatgi's disclosed solar cell, particularly, on its p-type doped substrate 400 as the base layer of claim 1, its n-type 3 Rohatgi et al., US 2009/0301559 Al, published December 10, 2009. 4 Park, US 2007/0175508 Al, published August 2, 2007. 5 Isaka et al., US 2010/0032012 Al, published February 11, 2010. 6 The Office also relies on Gorin et al., Fabrication of silicon nitride waveguides for visible-light using PECVD: a study of the effect of plasma frequency on optical properties, OPTICS EXPRESS 16: 13509-16 (2008). 7 Uematsu et al., US 6,461,947 Bl, issued October 8, 2002. 8 Duerinckx & Szlufcik, Defect passivation of industrial multi crystalline solar cells based on PECVD silicon nitride, SOLAR ENERGY MATERIALS & SOLAR CELLS 72: 231--46 (2002). 3 Appeal2017-007162 Application 13/094,940 diffused layer 410 as the emitter layer, its front electrode 445 connected to emitter 410 as the front electrode connected to the emitter layer, its barrier layer 420 as the first passivation layer, its passivation layer 405 as the second passivation layer, and its rear electrode 450 as the rear electrode on the first passivation layer and connected to the base layer through the second passivation layer and the first passivation layer. Ans. 2-3 ( citing Rohatgi ,r,r 36, 37, 39, 44, 45, Fig. 4F). The Examiner relies on Rohatgi disclosing that its barrier layer 420, relied on by the Examiner as the first passivation layer, is made of silicon nitride. Id. at 3 ( citing Rohatgi ,r 39). The Examiner further relies on Rohatgi for disclosing that the silicon nitride layer is a silicon nitride layer formed by PECVD. Id. at 8 ( citing Rohatgi ,r 31 ). As to the second passivation layer, the Examiner concedes that Rohatgi' s passivation layer 405 is made of silicon dioxide. Id. at 4 ( citing Rohatgi ,I 36, Fig. 4F). Park relates to a high efficiency solar cell comprising semiconductor substrate. Park, Abstract. The Examiner relies on Park for disclosing that the silicon nitride in its solar cell has a refractive index of 1.9. Id. at 3 (citing Park ,r 36). The Examiner further relies on Park for disclosing that its silicon nitride layer is formed by PECVD. Id. at 8 ( citing Park ,r 36). Isaka relates to a solar cell comprising silicon substrate and its fabrication. Isaka, Abstract. The Examiner relies on Isaka for teaching that silicon oxide and aluminum oxide are alternative materials for the second passivation layer. Ans. 4 ( citing Isaka ,r 45). As disclosed in Isaka, "[t]he second passivation film [layer] is formed between the first passivation film [layer] and the silicon substrate." Isaka ,r 45. 4 Appeal2017-007162 Application 13/094,940 As to the first passivation layer, the Examiner determines that the silicon nitride first passivation layer in Rohatgi has a refractive index of 1.9 because it is made of the same material, and in the same manner, as the silicon nitride layer in Park. Ans. 8 ( citing Rohatgi ,r 31; Park ,r 36). As to the second passivation layer, the Examiner concludes that a person of ordinary skill in the art would have found it obvious to use aluminum oxide because Isaka teaches that aluminum oxide and silicon oxide, the material used in Rohatgi, are known alternative materials. Id. at 4 ( citing MPEP 2144.06 Section II). As to the recitation that, for both the first passivation layer and the second passivation layer, the structure "guides carriers generated by the photoelectric effect to the front electrode," the Examiner determines the language is functional and that "[ w ]hile features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function." Ans. 4--5. Appellants contend both that the combination fails to teach or suggest the recited second passivation layer and that the Examiner has failed to provide sufficient, articulated reasoning to support the rejection. As to the combination not teaching or suggesting the second passivation layer, Appellants take the position that Rohatgi's "passivation layer 405 has nothing to do with '[guiding] carriers generated by a photoelectric effect to the front electrode."' App. Br. 7. Appellants argue that Rohatgi, rather, discloses that its passivation layer 405 formed of a dielectric such as silicon dioxide "'may help to prevent inversion' and 'separates the barrier layer 420 from the doped substrate 400 to avoid 5 Appeal2017-007162 Application 13/094,940 disadvantageous shunting of the solar cell."' Id. ( citing Rohatgi ,r,r 3 6, 40). Appellants further maintain that "the Final Office Action refused to give patentable weight to" "the recitation '[guiding] carriers generated by a photoelectric effect to the front electrode"' recited in claim 1. Id. at 7-8. Appellants' argument is unpersuasive of harmful error because, as set forth by the Examiner, the rejection is grounded on the combination of references providing an apparatus having the same structure as claimed, and, as correctly set forth by the Examiner, claims directed to an apparatus must be distinguished from the prior art in terms of structure. See, e.g., Catalina Mktg. Int'!, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002) ("[T]he patentability of apparatus or composition claims depends on the claimed structure, not on the use or purpose of that structure."). The Examiner reasonably determined that the silicon nitride layer in Rohatgi by PECVD would have the same refractive index as the silicon nitride layer formed in Park by PECVD. The Examiner's reliance on the combination providing the structure according to the claim was, accordingly, well founded, and Appellants direct us to neither persuasive argument, nor evidence that the provided structure does not have the recited characteristics or function. See, e.g., In re Best, 562 F.2d 1252, 1255 (CCPA 1977) ("Where ... the claimed and prior art products are identical or substantially identical ... the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product."). As to the sufficiency of the Examiner's articulated reasoning, Appellants contend a deficiency in that provided for the recited "first passivation layer comprising a silicon nitride group compound ... wherein 6 Appeal2017-007162 Application 13/094,940 the refractive index of the first passivation layer is equal to or less than about 1.96 that guides carriers generated by the photoelectric effect to the front electrode." App. Br. 8. Appellants maintain that the Examiner's reasoning as to modifying the silicon nitride layer 420 of Rohatgi to have the refractive index of 1.9 taught by Park is a mere conclusory statement and lacks a sufficient basis for the combination. Id. at 8-9. Appellants further argue that the reasoning is flawed on the basis that the silicon nitride layer 15 in Park, an anti-reflective layer, is not structurally or functionally equivalent to the barrier layer 420 of Rohatgi. Id. at 10. Appellants further contend the Examiner relied on impermissible hindsight in looking to the teachings of Park. Id. at 11. Appellants' argument is unpersuasive of harmful error because the Examiner does not combine any element from Park's solar cell into Rohatgi' s solar cell, but rather relies on Park as evidencing the refractive index of the silicon nitride layer in Rohatgi made of the same material and in the same manner. See, e.g., Ans. 8 ( citing Rohatgi ,r 31; Park ,r 3 6). Appellants provide no cogent argument why one of ordinary skill in the art would not look to Park for this purpose. See generally App. Br. As to Appellants' further contentions as to Isaka and Gorin (App. Br. 11 ), we discern no cogent argument contesting the Examiner's detailed ground of rejection (Ans. 2-5). Cf In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art. Because Lovin did not provide such arguments, the Board did not err in refusing to separately address claims 2- 7 Appeal2017-007162 Application 13/094,940 15, 17-24, and 31-34."); see also DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) ("A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record."). For the reasons above, we are not persuaded of harmful error in the Examiner's rejection of claim 1 over Rohatgi, Park, and Isaka. See In re Chapman, 595 F.3d 1330, 1338 (Fed. Cir. 2010) (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009) ("[T]he burden of showing that the error is harmful normally falls upon the party attacking the agency's determination."). Moreover, it follows that we are not persuaded that the Examiner relied on improper hindsight. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (requiring "some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness") ( cited with approval inKSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007)). Having not been persuaded as to the rejection of claim 1, it follows that Appellants' reliance on the dependency of claims 7-9, 21, 22, and 25 from claim 1 does not persuade us of harmful error in the rejection of those claims. Obviousness over Rohatgi, Park, and Is aka, in further view of Uematsu or Duerinckx The Examiner further relies on Uematsu in rejecting claim 10 and on Duerinck in rejecting claim 20. Ans. 6-7; Final Act. 6-7. Appellants rely on the contended error as to the rejection over Rohatgi, Park, and Osaka, and that the addition of the further references does not cure the contended error. App. Br. 12-13. 8 Appeal2017-007162 Application 13/094,940 Not being convinced of harmful error in the rejection of claims over Rohatgi, Park, and Osaka, we are not apprised of harmful error in the rejection of claims in further view ofUematsu or Duerinckx. DECISION The Examiner's rejections of claims 1, 7-10, 20-22, and 25 under 35 U.S.C. Â§ 103 are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED 9