First Solar, Inc.

Patent Trials and Appeals Board

May 18, 2021

2020003480 (P.T.A.B. May. 18, 2021)

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.
13/875,739 05/02/2013 Holly Ann Blaydes 1-55780 1070
109944 7590 05/18/2021
MacMillan, Sobanski and Todd, LLC - FIRST SOLAR
One Maritime Plaza, 5th Floor
720 Water St.
Toledo, OH 43604
EXAMINER
BARTON, JEFFREY THOMAS
ART UNIT PAPER NUMBER
1726
NOTIFICATION DATE DELIVERY MODE
05/18/2021 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):
MST@mstfirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOLLY ANN BLAYDES, KRISTIAN WILLIAM ANDREINI,
WILLIAM HULLINGER HUBER, EUGENE THOMAS HINNERS,
JOSEPH JOHN SHIANG, YONG LIANG, and JONGWOO CHOI
Appeal 2020-003480
Application 13/875,739
Technology Center 1700
Before LINDA M. GAUDETTE, DEBRA L. DENNETT, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 6–9, 13, 17, and 29–38. See Final
Act. 3, 12, 14, 17. 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. Appellant identifies the real party in interest as “First Solar, Inc.”
Appeal Br. 3.
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Application 13/875,739

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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A photovoltaic device, comprising:
a transparent layer stack; and
an absorber layer disposed on the transparent layer stack
and having a thickness between a front interface of the absorber
layer and a back interface of the absorber layer, wherein:
the front interface of the absorber layer is closer to
the transparent layer stack than the back interface of the
absorber layer,
the absorber layer comprises a compound of
cadmium, selenium, and tellurium,
an atomic concentration of selenium varies across
the thickness of the absorber layer,
the atomic concentration of selenium is greater at
the front interface of the absorber layer relative to the back
interface of the absorber layer,
a band gap of the absorber layer at the front
interface of the absorber layer is lower than the band gap
of the absorber layer at the back interface of the absorber
layer,
the absorber layer comprises a first region and a
second region, wherein:
the first region extends from the front interface of
the absorber layer to the second region,
the second region extends from the first region to
the back interface of the absorber layer,
the first region has a thickness between 200
nanometers to 1500 nanometers,
the second region has a thickness between 200
nanometers to 1500 nanometers, and
a ratio of an average atomic concentration of
selenium in the first region to an average atomic
concentration of selenium in the second region is greater
than 10.
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Application 13/875,739

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Claims Appendix (Appeal Br. 14).
REFERENCES
The prior art references relied upon by the Examiner are:
Name Reference Date
Bower US 2011/0024876 A1 Feb. 3, 2011
Gloeckler US 2012/0067392 A1 Mar. 22, 2012
Walukiewicz US 2013/0074912 A1 Mar. 28, 2013
Wu US 2015/0214403 A1 July 30, 2015
Jasieniak WO 2012/045113 A1 April 12, 2012
REJECTIONS
Claims 1, 6–8, 30, 31, 33, and 37 are rejected under 35 U.S.C. § 103
as being unpatentable over Walukiewicz. Final Act. 3.
Claim 9 is rejected under 35 U.S.C. § 103 as being unpatentable over
Walukiewicz and Jasieniak. Final Act. 12.
Claims 29, 31, 32, 34, and 38 are rejected under 35 U.S.C. § 103 as
being unpatentable over Walukiewicz and Gloeckler, whereas Wu is used as
evidence for claims 34 and 38. Final Act. 14.
Claims 13, 17, 35, and 36 are rejected under 35 U.S.C. § 103 as being
unpatentable over Walukiewicz, Bower, and Gloeckler, whereas Wu is used
as evidence for claim 13. Final Act. 17.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Cf. Ex parte Frye, 2010 WL 889747, *4 (BPAI 2010)
(precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to
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identify the alleged error in the examiner’s rejections.”). After having
considered the evidence presented in this Appeal and each of Appellant’s
contentions, we are not persuaded that reversible error has been identified,
and we affirm the Examiner’s § 103 rejections for the reasons expressed in
the Final Office Action and the Answer. We add the following primarily for
emphasis.
Claim 12
Appellant argues that the Examiner reversibly erred in finding that
Walukiewicz teaches or suggests a photovoltaic device having an absorber
layer with a first region that “extends from the front interface of the absorber
layer to [a] second region” of the absorber layer and the second region
“extends from the first region to the back interface of the absorber layer” as
recited in claim 1. Appeal Br. 6. Appellant argues that the Examiner
erroneously “puts forth the view that the claimed first and second regions do
not together necessarily span the thickness of the absorber layer” because the
Specification provides that “the thickness of the first and second region,
together, mak[es] up the entire thickness of the absorber layer.” Id. at 6, 7.
Appellant’s argument is unpersuasive because the plain language of
the claim does not support Appellant’s argument. See In re Self, 671 F.2d
1344, 1348 (CCPA 1982) (holding that “appellant’s arguments fail from the
outset because . . . they are not based on limitations appearing in the
claims”). Claim 1 recites “an absorber layer . . . having a thickness between

2 Appellant argues against the rejection of claims 1, 6–8, 30, 31, 33, and 37
as a group, with claim 1 as the representative claim. See Reply Br. 6–9.
These claims stand or fall together. See id.; see also 37 C.F.R.
§ 41.37(c)(1)(iv).
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a front interface of the absorber layer and a back interface of the absorber
layer” but does not require the recited thickness to be “the entire thickness of
the absorber layer” as Appellant argues (Appeal Br. 7). An indefinite article
“a” or “an” in patent parlance carries the meaning of “one or more” in open-
ended claims containing the transitional phrase “comprising.” KCJ Corp. v.
Kinetic Concepts, Inc., 223 F.3d 1351, 1356 (Fed. Cir. 2000). We decline to
import limitations into the claim and therefore are unpersuaded by
Appellant’s argument.
Appellant’s next argument that Walukiewicz is not enabling and
therefore does not teach or suggest “a ratio of an average atomic
concentration of selenium in the first region to an average atomic
concentration of selenium in the second region is greater than 10” is
unpersuasive for lack of evidentiary support. See Appeal Br. 8–9. “[A] prior
art printed publication cited by an examiner is presumptively enabling
barring any showing to the contrary by a patent applicant.” In re Antor
Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). Appellant has not
carried this evidentiary burden. Appellant’s remaining assertion that
Walukiewicz “would not enable a person of ordinary skill in the art to make
the claimed device without undue experimentation or with a reasonable
expectation of success” (Appeal Br. 9) is likewise unsupported by evidence
showing undue experimentation or a lack of reasonable expectation of
success.
The rejection of claim 1 is sustained.
Claim 9
Appellant argues that the Examiner reversibly erred in rejecting claim
9 based on Walukiewicz and Jasieniak because Jasieniak “suggest[s]
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minimizing grain boundaries to increase efficiency.” Appeal Br. 9.
Appellant, however, does not respond to — and therefore does not identify
reversible error in — the Examiner’s finding that Jasieniak “teaches the
presence of grain boundaries in the alloy material in the cited passages” and
therefore “teaches that it is known for CdSexTe1-x alloyed films to be made
of nanoparticles with grain boundaries, which is the basis of the rejection.”
Final Act. 22. Appellant also does not address the Examiner’s findings with
regard to Walukiewicz whose teaching is combined with Jasieniak to reject
claim 9, nor does Appellant address the Examiner’s rationale to combine the
references. Compare Appeal Br. 9, with Final Act. 13–14 (providing a
rationale with citation to the record in support of the rejection), 22–23
(analyzing the combined prior art teaching). Appellant’s argument attacks
the references individually, rather than considering what the combined
references would have suggested to the person of ordinary skill in the art.
“Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing
In re Keller, 642 F.2d 413, 425 (CCPA 1981)).
Claims 29, 31, 32, 34, & 383
Without specifying a particular claim to which the argument is
directed, Appellant argues that “[t]he claimed device does not describe
including a CdS window layer, and specifies in claims 34 and 38 that the
photovoltaic device is free of a cadmium sulfide layer, so a person of

3 Appellant argues against the rejection of claims 29, 31, 32, 34, and 38 as a
group without specifying a representative claim. See Reply Br. 10–11. These
claims stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv).
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ordinary skill in the art would not be motivated to look to Walukiewicz with
a reasonable expectation of success.” Appeal Br. 10.
From the outset, claims 31 and 32 are open-ended claims not limited
to elements recited in these claims. Claim 29 depends from an open-ended
claim and therefore also does not exclude a CdS window layer. With regard
to claims 34 and 38 which recite that “the photovoltaic device is completely
free of a cadmium sulfide layer,” Appellant’s argument is unpersuasive
because it does not address the Examiner’s finding with regard to Gloeckler
which together with Walukiewicz and as evidenced by Wu forms the basis
of the rejection. Compare Appeal Br. 10–11, with Final Act. 14–17, 23–24.
For example, the Examiner finds that “Gloeckler teaches that ZnS is a
known and suitable material as an alternative to CdS in window layers.”
Final Act. 23. Appellant does not dispute this finding and only argues that
“Gloeckler is silent as to the conduction band energy of CdS or ZnS”
(Appeal Br. 10) without explaining why it structurally distinguishes the
apparatus claims at issue. “[A]pparatus claims cover what a device is, not
what a device does.” Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d
1464, 1468 (Fed. Cir. 1990). Appellant’s assertion that there lacks a
reasonable expectation of success (Appeal Br. 10) lacks evidentiary support
and is therefore unpersuasive.
The rejection of claims 29, 31, 32, 34, and 38 is sustained.
Claim 134

4 Appellant argues against the rejection of claims 13, 17, and 36 as a group
with independent claim 13 as representative. See Reply Br. 11–12. These
claims stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv).
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Appellant argues that the Examiner reversibly erred in rejecting claim
13 “[b]ecause the claimed device does not have a CdS layer, [and] a person
of ordinary skill in the art would not view the claimed invention as obvious
over Walukiewicz.” Appeal Br. 11. Appellant’s argument is unpersuasive
because it does not address the Examiner’s finding based on Gloeckler
which together with Walukiewicz (and other cited references) forms the
basis of the rejection. Compare id., with Final Act. 24–25 (pointing out that
“Gloeckler was applied to replace the CdS material of the window layer with
ZnS, as Gloeckler teaches that ZnS is a known and suitable material as an
alternative to CdS in window layers”).
Appellant’s argument that Walukiewicz is not enabling is
unpersuasive for lack of evidentiary support. “[A] prior art printed
publication cited by an examiner is presumptively enabling barring any
showing to the contrary by a patent applicant.” In re Antor Media Corp., 689
at 1288.
Claim 35
In rejecting claim 35, the Examiner finds that “Walukiewicz does
teach that the compositional grading of the Te and Se in the light absorbing
layer, and thus the amount of Se, is related to the collection efficiency of
photogenerated electrons” and that “the amount of Se is also related to the
band gap of the composition used in the light absorbing layer, which further
affects the mismatch between short circuit current and open circuit voltage
with the window layer.” Final Act. 20 (citing various portions of
Walukiewicz). The Examiner accordingly finds that an ordinary skilled
artisan would have arrived at the recited concentration through routine
optimization. Id. Appellant does not dispute the prior art teachings, nor the
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Examiner’s conclusion that a routine optimization would have led an
ordinary skilled artisan to the recited concentration. Compare Appeal Br.
11–12, with Final Act. 20. Appellant only argues that Walukiewicz “does
not include specific atomic percentages” which the Examiner acknowledges.
Appeal Br. 12; Final Act. 20. Appellant’s argument does not address the fact
finding or rationale in support of the rejection and is therefore unpersuasive.
Claims 13, 34–36, & 38
Appellant argues that Walukiewicz “describes composition selection
with respect to a layer that is not present in the device of claims 13, 34–36,
and 38 [and t]hus it is not an enabling disclosure at least because claim 13
specifies that ‘the photovoltaic device is substantially free of a cadmium
sulfide layer,’ so there is no CdS window layer in the claimed device.”
Appeal Br. 12. As noted supra, “a prior art printed publication cited by an
examiner is presumptively enabling barring any showing to the contrary by a
patent applicant.” In re Antor Media Corp., 689 at 1288. As also noted
supra, Appellant’s argument is unpersuasive because it does not address the
Examiner’s finding based on Gloeckler which together with Walukiewicz
(and other cited references) forms the basis of the rejection. Compare
Appeal Br. 12, with Final Act. 24–25 (pointing out that “Gloeckler was
applied to replace the CdS material of the window layer with ZnS, as
Gloeckler teaches that ZnS is a known and suitable material as an alternative
to CdS in window layers”).
CONCLUSION
The Examiner’s rejections are affirmed.
More specifically,
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6–8, 30,
31, 33, 37
103 Walukiewicz 1, 6–8, 30,
31, 33, 37

9 103 Walukiewicz,
Jasieniak
9
29, 31, 32,
34, 38
103 Walukiewicz,
Gloeckler (as
evidenced by Wu)
29, 31, 32,
34, 38

13, 17, 35,
36
103 Walukiewicz,
Bower, Gloeckler
(as evidenced by
Wu)
13, 17, 35,
36

Overall
Outcome
1, 6–9, 13,
17, 29–38

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED