Ex Parte CHO et al

Patent Trial and Appeal Board

Jun 28, 2016

12202647 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/202,647
21874 7590
Locke Lord LLP
P.O. BOX 55874
BOSTON, MA 02205
09/02/2008
06/30/2016
FIRST NAMED INVENTOR
An-Thung CHO
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.
Ol 14775.103US4 1770
EXAMINER
DANICIC, CHRISTOPHER
ART UNIT PAPER NUMBER
1758
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
patent@lockelord.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte AN-THUNG CHO, CHIH-WEI CHAO, CHIA-TIEN PENG, and
KUN-CHIH LIN1
Appeal2015-000652
Application 12/202,647
Technology Center 1700
Before BRADLEY R. GARRIS, TERRY J. OWENS, and
WESLEY B. DERRICK, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejection under 35 U.S.C. § 103(a) of claims 9, 11, 12, 15-18, and 43-53 as
unpatentable over Green (Center of Excellence for Advanced Silicon
Photovoltaics and Photonics, All-Silicon Tandem Cells Based On
"Artificial" Semiconductor Synthesised Using Silicon Quantum Dots In a
Dieletric Matrix, 20th European Photovoltaic Solar Energy Conference 6, 3-
1 AU Optronics Corporation is identified as the real party in interest. App.
Br. 3.
Appeal2015-000652
Application 12/202,647
7 (June 2005)) in view of Stachowiak (US 2006/0246301 Al, pub. Nov. 2,
2006), Nagano (US 2003/0111106 Al, pub. June 19, 2003), and Joshi (US
2006/0211267 Al, pub. Sept. 21, 2006). We have jurisdiction under 35
U.S.C. § 6.
We REVERSE.
Appellants claim a photovoltaic cell comprising first and second
conductive layers 1010, 1070 having there between a photovoltaic
conversion layer 1001 with a multi-band gap comprising first, second, and
third silicon-rich dielectric sub-layers 1030, 1040, 1050 respectively having
certain silicon content ratios and refractive indices (independent claims 9
and 45, Fig. 10).
A copy of representative claim 9, taken from the Claims Appendix of
the Appeal Brief, appears below.
9. A photovoltaic cell, comprising:
a first conductive layer;
a second conductive layer; and
a photovoltaic conversion layer formed between the
first conductive layer and the second conductive layer,
wherein the photovoltaic conversion layer has a multi-band
gap, and the photovoltaic conversion layer comprises:
a first silicon-rich dielectric sub-layer formed between
the first conductive layer and the second conductive layer, the
first silicon-rich dielectric sub-layer having a first silicon
content ratio and a first refractive index nl corresponding to
the first silicon content ratio;
a second silicon-rich dielectric sub-layer formed
between the first silicon-rich dielectric sub-layer and the
second conductive layer, the second silicon-rich dielectric
sub-layer having a second silicon content ratio and a second
refractive index n2 corresponding to the second silicon
content ratio, wherein the second silicon content ratio is
2
Appeal2015-000652
Application 12/202,647
smaller than the first silicon content ratio, and the second
refractive index n2 is smaller than the first refractive
index n 1 ; and
a third silicon-rich dielectric sub-layer formed between
the second silicon-rich dielectric sub-layer and the second
conductive layer, the third silicon-rich dielectric sub-layer
having a third silicon content ratio and a third refractive index
n3 corresponding to the third silicon content ratio, wherein the
third silicon content ratio is smaller than the second silicon
content ratio, and the third refractive index n3 is smaller than
the second refractive index n2,
wherein the first silicon-rich dielectric sub-layer and the
second silicon-rich dielectric sub-layer are substantially in
contact with each other, and the second silicon-rich dielectric
sub-layer and the third silicon-rich dielectric sub-layer are
substantially in contact with each other; and
wherein each of the first silicon-rich dielectric sub-
layer, the second silicon-rich dielectric sub-layer and the third
silicon-rich dielectric sub-layer includes a plurality of silicon
nanocrystals therein.
The rejection before us is based on the Examiner's finding that the
second and third silicon-rich dielectric sub-layers of the independent claims
are satisfied by the N and P QD junctions in the tandem stack of
photovoltaic cells disclosed by Green (The Final Action 5---6 (citing Green
Fig. 3, pp. 3--4)).
Appellants argue that the Examiner's finding constitutes an
impermissibly broad interpretation of the claims because their Specification
disparages multi-junction tandem photovoltaic cells of the type disclosed by
Green (App. Br. 22-32 (citing Spec. 3, 14)). In support of their argument,
Appellants cite In re Abbott Diabetes Care Inc., 696 F.3d 1142 (Fed. Cir.
2012) for the legal principle that it is improper to interpret a claim term
broadly enough to encompass a component only disparaged by the applicant
in the specification (id. at 24).
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Appeal2015-000652
Application 12/202,647
Based on the record before us, Appellants' argument has persuasive
merit. As correctly explained by Appellants, the Specification discloses that
"[t]he [inventive] multi-band gap Si nanocrystal photovoltaic cell with a
single junction has numbers of advantages over a conventional multiple
junction (tandem) photovoltaic cell having a stack of individual single-
junction photovoltaic cells in descending order ofbandgap" (Spec. 14:23-
26) and that "the tandem photovoltaic cell[] has drawbacks including
junction loss and lattice mismatch, thereby reducing the photovoltaic
conversion efficiency" (id. at 14:28-29). This disparagement of a multi-
junction tandem photovoltaic cell such as disclosed by Green evinces that
the Examiner's claim construction (i.e., construing the recited second and
third sub-layers as encompassing the N and P QD junctions of Green's
multi-junction tandem cell) is unreasonable and inconsistent with the
Specification. See In re Abbott, 696 F .3d at 1149.
The Examiner responds to Appellants' argument by pointing out that
"the Applicant neither defines in the specification [ n ]or in the claims the
requirement that the SRD [i.e. silicon rich dielectric] layers not be doped
silicon" (Ans. 10). Even if accurate, this point does not make the
Examiner's claim interpretation reasonable and consistent with the
Specification. Abbott explains that the absence of such an explicit definition
or statement is not determinative because "[ w ]e have held that ' [ e ]ven when
guidance is not provided in explicit definitional format, the specification
may define claim terms by implication such that the meaning may be found
in or ascertained by a reading of the patent documents."' Abbott, 696 F.3d at
1150 (quotingirdetoAccess, Inc. v. Echostar Satellite Corp., 383 F.3d 1295,
1300 (Fed. Cir. 2004)).
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Appeal2015-000652
Application 12/202,647
In summary, the record before us supports Appellants' position that
the Examiner erred by interpreting the second and third sub-layers of the
independent claims as corresponding to Green's N and P QD junctions. For
this reason, we do not sustain the § 103 rejection of the appealed claims.
The decision of the Examiner is reversed.
REVERSED
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