V¿¿N¿NEN, Mikko

Patent Trials and Appeals Board

Jul 13, 2020

13051097 - (D) (P.T.A.B. Jul. 13, 2020)

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.
13/051,097 03/18/2011 Mikko VÄÄNÄNEN P201841US_DIV 3868
129597 7590 07/13/2020
Mikko Kalervo Vaananen
PO Box 346
Street address: Unioninkatu 20-22, Suite B351
Helsinki, 00131
FINLAND
EXAMINER
MEKHLIN, ELI S
ART UNIT PAPER NUMBER
1796
NOTIFICATION DATE DELIVERY MODE
07/13/2020 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):
patents@suinno.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MIKKO VÄÄNÄNEN
Appeal 2019-004169
Application 13/051,097
Technology Center 1700

Before CATHERINE Q. TIMM, CHRISTOPHER C. KENNEDY, and
BRIAN D. RANGE, Administrative Patent Judges.

TIMM, 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 27, 30, and 31. See Final Act. 1. 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 does not identify the real party in interest. Appeal
Br., in its entirety. Thus, we assume the inventor, Mikko Väänänen, is the
real party in interest. 37 C.F.R. § 41.37(c)(1)(i) (2018).
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CLAIMED SUBJECT MATTER
The claims are directed to a portable terrestrial consumer electronic
device. Claim 27, reproduced below, is illustrative of the claimed subject
matter:
27. A portable terrestrial consumer electronic device,
comprising:
at least one multijunction solar cell,
wherein the multijunction solar cell has a band gap
matching an emission peak of indoor lighting, and
the multijunction solar cell is configured to be powered
by the indoor lighting to charge or power the portable terrestrial
consumer electronic device, and
a photon filter is configured in between two
semiconductor layers that are subcells of the multijunction solar
cell, and another photon filter is also configured in between two
semiconductor layers that are also subcells of the multijunction
solar cell, at least one of which semiconductor layer is different
from the earlier two semiconductor layers of the multi junction
solar cell.
Appeal Br. 7 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Wanlass US 2003/0160251 A1 Aug. 28, 2003
Royer US 2005/0199280 A1 Sept. 15, 2005
Yang US 2008/0036127 A1 Feb. 14, 2008
Kothari US 2009/0103165 A1 Apr. 23, 2009
Kothari2 US 2009/0159123 A1 June 25, 2009
Mori JP 58-188169 Nov. 2, 1983

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REJECTIONS
The Examiner maintains the following rejections.
Claims 27, 30, and 31 are rejected under 35 U.S.C. § 112(b) or 35
U.S.C. § 112 (pre-AIA), second paragraph, as being indefinite for failing to
particularly point out and distinctly claim the subject matter which the
inventor or a joint inventor, or for pre-AIA the applicant regards as the
invention. Final Act. 3.
Claims 27 and 31 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Kothari in view of Kothari2 and Wanlass with
Mori, and the emission peak spectrum associated with the indoor lighting
described therein, as provided by Applicant in the response filed November
25, 2013, used to support a statement of fact. Final Act. 3.
Claim 30 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Kothari, Kothari2, and Wanlass, further in view of Yang.
Final Act. 7.
Claim 30 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Kothari, Kothari2, and Wanlass, further in view of Royer.
Final Act. 8.
OPINION
Indefiniteness
The Examiner determines that the last clause of claim 27 is indefinite
because, according to the Examiner, the number and location of the
semiconductor layers and subcells as well as the specific positioning of the
photon filters relative to the semiconductor layers is unclear. Final Act. 3.
In order to evaluate the Examiner’s rejection, we consider the
requirements of the second paragraph of pre-AIA 35 U.S.C. § 112.
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The second paragraph of pre-AIA 35 U.S.C. § 112 requires the
Specification “conclude with one or more claims particularly pointing out
and distinctly claiming the subject matter which the applicant regards as his
invention.” 35 U.S.C. § 112, ¶ 2 (2016). “As the statutory language of
‘particular[ity]’ and ‘distinct[ness]’ indicates, claims are required to be cast
in clear—as opposed to ambiguous, vague, indefinite—terms.” In re
Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014). The standard is one of
reasonable precision. Id. This standard strikes a delicate balance between the
inherent limitations in language as a method of defining an invention and the
need to provide clear notice to the public of what is claimed. Nautilus, Inc. v.
Biosig Insts., Inc., 572 U.S. 898, 909 (2014). Articulated in a different way,
the test for compliance for 35 U.S.C. § 112, second paragraph, is whether
the claims “set out and circumscribe a particular area with a reasonable
degree of precision and particularity” when read “in light of the teachings of
the prior art and of the particular application disclosure as it would be
interpreted by one possessing the ordinary level of skill in the pertinent art.”
In re Moore, 439 F.2d 1232, 1235 (CCPA 1971).
Next, we consider the claims in light of the Specification.
Looking to the Specification, we see it describes an arrangement of
photon filters placed between solar cell layers2 made of semiconductor

2 We presume the “subcells” of claim 27 are equivalent to the “solar cell
layers” recited in the Specification. The Specification does not use the term
“subcells,” but describes “solar cell layers” that appear to serve as the
subcells. See, e.g., Spec. 3:12 (“tandem solar cell with two solar cell
layers”). Note that 37 C.F.R. § 1.75(d)(1) requires the terms and phrases
used in the claims find clear support or antecedent basis in the description so
that the meaning of the terms in the claims may be ascertainable by
reference to the description. See MPEP §§ 608.01 and 2173.03. To provide
consistency between the claims and Specification, Appellant should replace
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material. For instance, Figure 3 depicts an embodiment with three photon
filters (100, 101, 102) between four solar cell layers (200, 201, 202, 203).
Spec. 23:1–2.
Claim 27 does not clearly recite the alternating arrangement of layers
described in the Specification. Instead, claim 27 uses a combination of
plurals, e.g., “two semiconductor layers that are subcells,” to set forth the
structures. How the two layers and two subcells recited in the claim relate to
each other structurally is unclear. Moreover, claim 27 does not introduce
each of the layers as a separate entity and, in fact, recites four layers, but
implies that they are not necessarily different from each other. See claim 27
(“at least one of which semiconductor layer is different from the earlier two
semiconductor layers of the multi junction solar cell.”). Normally, a listing
of four layers would mean, there are four separate layers. See Becton,
Dickinson & Co. v. Tyco Healthcare Grp. LP, 616 F.3d 1249, 1254 (Fed.
Cir. 2010) (“Where a claim lists elements separately, ‘the clear implication
of the claim language’ is that those elements are ‘distinct component[s]’ of
the patented invention.” (citations omitted)). This adds another layer of
uncertainty to the claim.
The problem here might be remedied by more distinctly reciting each
layer. For instance, the claims could be reworded to recite that the
multijunction solar cell has a first semiconductor layer serving as a first solar
cell layer (or first subcell), a second semiconductor layer serving as a second
solar cell layer (or second subcell), a third semiconductor layer serving as a
third solar cell layer (or third subcell), a first photon filter located between

“subcell” in the claims with “solar cell layer” or replace “solar cell” in the
Specification with “subcell” if the two terms have the same meaning to one
of ordinary skill in the art.
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the first and second semiconductor layers, and a second photon filter located
between the second semiconductor layer and third semiconductor layer.
We determine, as did the Examiner, that claim 27 is not as
“reasonably precise as the circumstances permit[],” Packard, 751 F.3d at
1314. Thus, we sustain the rejection of claims 27, 30, and 31 under 35
U.S.C. § 112, second paragraph, as indefinite.

Obviousness
The Examiner rejects claims 27 and 31 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Kothari in view of Kothari2 and
Wanlass, using Mori, and the emission peak spectrum associated with the
indoor lighting described therein, as provided by Applicant in the response
filed November 25, 2013, to support a statement of fact. Final Act. 3. The
Examiner adds either Yang or Royer to reject claim 30. Final Act. 7–8.
Appellant does not argue the claims and rejections separately. Appeal
Br. 6. Thus, the issues are the same for all the claims and rejections. Thus,
we select claim 27 as representative for resolving the issues on appeal.
Appellant contends that Kothari2 was published after the invention
was made. Appeal Br. 6. The Examiner determines that Kothari2 properly
qualifies as prior art. Ans. 11.
A preponderance of the evidence supports the Examiner’s
determination. The Examiner explains that Kothari2’s filing date is before
Appellant’s foreign priority date. Ans. 11. The Examiner has established that
Kothari2 qualifies as prior art under pre-AIA 35 U.S.C. § 102(e). Appellant
has not presented evidence of an invention date that is earlier than
Kothari2’s filing date. See MPEP § 715 (discussing 37 C.F.R. § 1.131 and
the requirements for swearing behind a reference).
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Turning to the substance of the rejection, the first issue that arises is
whether Appellant has identified a reversible error in the Examiner’s
determination that the prior art teaches or suggests constructing a
multijunction solar cell having a “band gap matching an emission peak of
indoor lighting.” Claim 27. Appellant contends that “[t]he assumption that
any solar cell would match the emission peak of an indoor light with its band
gap is simply incorrect.” Appeal Br. 6.
Appellant’s argument is not persuasive of reversible error in the
Examiner’s rejection.
The Examiner determines that “[a]ny multijunction solar cell meeting
the band gap requirements of the claimed invention is capable of the same
use absent evidence to the contrary.” Final Act. 4. In other words, a prior art
solar cell that has a band gap of a particular value will have that value no
matter how it is characterized, i.e. whether one characterizes the band gap as
matching the emission peak of indoor light, characterizes it as matching that
same emission peak but as a component of sunlight, or fails to characterize it
at all. A band gap matching an emission peak of, for instance, 611 nm, will
still match that emission peak whether or not the prior art identifies the band
gap as one that matches indoor lighting. Thus, as an initial matter, we must
consider what band gaps match an emission peak of indoor lighting to
determine the scope of band gaps encompassed by claim 27. All solar cells
with a band gap in the required range will meet the requirements of the band
gap limitation.
Appellant’s Specification provides some insight. Appellant’s
Specification describes tandem solar cells with at least one solar cell layer
that “has a band gap and a spectral response that converts electricity
efficiently from photons emitted by indoor lights, such as fluorescent lights,
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LEDs (light emitting diodes) or light bulbs.” Spec. 31:16–21. In an
embodiment that combines a power system of a mechanical power generator
and a solar cell, the solar cell has “a band gap at an energy associated with
photons emitted from fluorescent lights or other indoor lightning systems,
typically at a wavelength of 400-500 nm.” Spec. 32:13–16. Thus, solar cell
layers with band gaps matching emission peaks in the range 400–500 nm
wavelength will have band gaps within the range required by indoor lighting
as required by claim 27.
Although the Specification establishes that band gaps matching
emission peaks in the range of 400–500 nm are within the scope of claim 27,
claim 27 is not limited to band gaps matching emission peaks in the 400–500
nm range. Claim 27 encompasses solar cells with band gaps matching the
emission peak of any type of indoor lighting. Fluorescent light is just an
example.
The Specification also provides some evidence on band gap values as
they relate to wavelength emission peak values. The Specification discloses
an embodiment with a GaN solar cell layer 200 with a band gap of 3.4 eV
that matches an emission peak of 365 nm, an InGaP solar cell layer 201 with
a 1.93 eV band gap matching 643 nm, and a polymorphic silicon solar cell
layer 202 with a 1.1 eV band gap matching 1128 nm. Spec. 23:28–24:9.
There is also undisputed evidence that a band gap of 2.0 eV, which
has an emission peak at 611 nm, is within the range of band gaps matching
an emission peak of indoor lighting. Final Act. 6 (relying on Mori and
Appellant’s Response).
Thus, on this record, a preponderance of the evidence supports a
determination that the recitation “band gap matching an emission peak of
indoor light” encompasses band gaps matching emission peaks in the range
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of at least 400–611 nm, i.e., band gaps in the range of 2.0 eV to something
less than 3.4 eV.
Next we turn to the prior art evidence relied on by the Examiner to see
whether it would have suggested constructing a solar cell with a band gap in
the range required by claim 27. We determine that it does.
As found by the Examiner, Kothari2 teaches a multijunction solar cell
(photovoltaic (PV) device) with multiple active solar cell layers with photon
filters 3708a–d therebetween. Final Act. 4; Kothari2 ¶¶ 224–225; Fig. 37.
Figure 37 depicts an example with five active solar cell layers 3706a–e.
Kothari2 ¶ 224; Fig. 37. The semiconductor material of each solar cell layer
is selected so that the band gap decreases continuously from layer 3706a to
3706e and, accordingly, each solar cell layer is capable of absorbing light of
decreasing energies. Id. In the specific fiver layer example of Figure 37, the
top layer 3706a is made of silicon (Si) and the bottom layer 3706e is made
of germanium (Ge). Kothari2 ¶ 225. The intermediate layers 3706b–d
contain alloys of Si and Ge. Id. Silicon layer 3607a has a band gap of 1.129
eV and absorbs photons with the highest energy. Id. Intermediate layers
3706b–d contain decreasing concentrations of silicon and increasing
concentrations of germanium so that more photons of decreasing energies
are absorbed as the concentration of germanium increases and the
concentration of silicon decreases. Id. Layer 3706e may be pure germanium,
which has a band gap of 0.66 eV, and will absorb infrared light. Id.
Although the band gaps of the Figure 37 example are lower than those
required by claim 27, Kothari2 suggests using the device to harness energy
from the sun. Kothari2 ¶ 6. Moreover, Kothari2 discloses that the example
of the silicon and germanium alloy is illustrative only. Kothari2 ¶ 225. Other
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semiconductor materials with bandgaps that more widely cover the solar
spectrum may be used. Id.
According to Wanlass, it was known in the art to use stacks of solar
cells of varying band gap energy to absorb the energy of photons from
sources, such as the sun, that produce photons having a wide range of energy
levels. Wanlass ¶¶ 11–12. Wanlass states that “[a]s is well known in the art,
possible semiconductor materials for use in the present invention include,
without limitation, materials having band-gap energies 0.2 e Y to 2.5 eV.”
Wanlass ¶ 42.
The Examiner concludes that it would have been obvious to the
ordinary artisan to modify the multijunction solar cell taught by Kothari and
Kothari2 “to cover a spectrum of incident light ranging from 0.2 to 2.5 eV
because Wanlass teaches this to be an effective spectrum of incident light to
be covered by a multijunction solar cell.” According to the Examiner, Mori
“establishes known indoor lighting has an emission peak at 611 nm, which
corresponds to a band gap of approximately 2.0 eV. Mori, Abstract.” Final
Act. 6.
There is no question that none of the references state that the band gap
of any of their solar cell layers matches an emission peak of indoor lighting.
But the lack of such a statement is not dispositive. The Examiner has
established that a band gap of approximately 2.0 eV matches an emission
peak of indoor lighting, i.e., a band gap of 2.0 eV is within the range of
values encompassed by claim 27. The ordinary artisan following the
directions of Kothari2 and Wanlass and forming a multijunction solar cell
with alternating active solar cell layers and photon filter layers to harness
energy from the sun would have selected active layer semiconductor
materials to optimize the band gaps for all possible incident light ranging
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from 0.2 to 2.5 eV and in that process would have constructed layers with
band gaps matching the emission peaks of indoor lighting.
Appellant contends that “[t]he rejection shows no evidence that the
person of ordinary skill would be motivated to perform the combination of
the photon ping-pong with filters, and the adjustment of the semiconductor
bandgaps to match an indoor light.” Appeal Br. 6. According to Appellant,
“[b]ased on the references, the person skilled in the art would not end up
with a solar cell that creates photon ping-pong in between the photon filters
using artificial light. There is nothing in the prior art that in any way lead the
skilled artisan to consider a power source of this kind.” Id.
It is not clear, however, how the photon filters of claim 27 differ
structurally from the filters taught by Kothari2. Korthari2 teaches dichroic
filter layers 3708a–e that are “configured to reflect light with the same
energies as the bandgaps of directly overlying or closest overlying active
layers.” Kothari2 ¶ 224. Like Appellant’s photon filters, Kothari2’s dichroic
filters “are configured to selectively reflect certain light frequencies while
transmitting other frequencies.” Korthari2 ¶ 209.
Appellant contends that the claim requires a subcell semiconductor
layer sandwiched between two filters and “[p]hotons reflected by both
photon filters will be trapped in this subcell” and “[t]he entrapped photons
will be bouncing back and forth between the two filters, like ping-pong
balls.” Reply Br. 3. But Kothari2 also includes semiconductor layers (PV
Materal layers) sandwiched between filters (Dichroic Filter layers). See, e.g.,
Fig. 37. It is not clear why Kothari2’s filters would not entrap photons in the
same manner as Appellant’s filters. Claim 27 does not include structure that
structurally distinguishes the photon filters of the claim from the dichroic
filters of Kothari2.
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Because Appellant has not identified a reversible error in the
Examiner’s obviousness rejections, we sustain those rejections.
CONCLUSION
The Examiner’s decision to reject claims 27, 30, and 31 is
AFFIRMED.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
27, 30, 31 112, second
paragraph
Indefiniteness 27, 30, 31
27, 31 103(a) Kothari,
Kothari2,
Wanlass,
Mori
27, 31
30 103(a) Kothari,
Kothari2,
Wanlass,
Mori, Yang
30
30 103(a) Kothari,
Kothari2,
Wanlass,
Mori, Royer
30
Overall
Outcome
27, 30, 31

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