First Solar, Inc.Download PDFPatent Trials and Appeals BoardMay 18, 20212020003480 (P.T.A.B. May. 18, 2021) Copy Citation 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. Appeal 2020-003480 Application 13/875,739 2 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. Appeal 2020-003480 Application 13/875,739 3 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 Appeal 2020-003480 Application 13/875,739 4 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). Appeal 2020-003480 Application 13/875,739 5 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] Appeal 2020-003480 Application 13/875,739 6 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). Appeal 2020-003480 Application 13/875,739 7 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). Appeal 2020-003480 Application 13/875,739 8 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 Appeal 2020-003480 Application 13/875,739 9 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, Appeal 2020-003480 Application 13/875,739 10 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 Copy with citationCopy as parenthetical citation