Ex Parte Mellott et al

Patent Trial and Appeal Board

Dec 31, 2013

11514320 (P.T.A.B. Dec. 31, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte NATHAN P. MELLOTT, THOMAS J. TAYLOR, and
SCOTT V. THOMSEN
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Appeal 2013-009375
Application 11/514,320
Technology Center 1700
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Before BRADLEY R. GARRIS, PETER F. KRATZ, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejections under 35 U.S.C. § 103(a) of claims 1-21 as unpatentable over
Nelson (US 6,165,598 issued December 26, 2000) in view of Hunt (US
6,013,318 issued January 11, 2000) and additional prior art. We have
jurisdiction under 35 U.S.C. § 6.

Appeal 2013-009375
Application 11/514,320

2

We REVERSE.

Appellants claim a method of making a solar cell wherein flame
pyrolysis is used to form at least part of an anti-reflection coating having
nanostructures comprising peaks and valleys with particular ranges of
average elevation and average gap distance (independent claim 1).
Appellants also claim a solar cell comprising such an anti-reflection coating
formed by flame pyrolysis (remaining independent claim 21).

A copy of independent claims 1 and 21, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A method of making a solar cell, the method comprising:
providing a photovoltaic layer and at least a glass substrate on a light
incident side of the photovoltaic layer;
providing an anti-reflection coating on the glass substrate, the anti-
reflection coating including at least one layer and being located on a light-
incident side of the glass substrate; and
wherein flame pyrolysis is used to form at least part of the anti-
reflection coating which is provided on the light-incident side of the glass
substrate of the solar cell such that the flame pyrolysis used to form the anti-
reflection coating causes nanostructures comprising peaks and valleys on an
exterior surface of the anti-reflection coating, the
peaks having an average elevation of from about 5-60nm relative to adjacent
valleys, and there being an average gap distance of from about 10-80nm
between adjacent peaks or adjacent valleys.

21. A solar cell, comprising:
a photovoltaic layer and at least a glass substrate on a light incident
side of the photovoltaic layer;

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Application 11/514,320

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an anti-reflection coating formed at least partially by flame pyrolysis
provided on the glass substrate and being 50-150 nm thick, the anti-
reflection coating including at least one layer and being located on a light-
incident side of the glass substrate; and
wherein the glass substrate comprises:

wherein the glass substrate by itself has a visible transmission of at
least 90%, a transmissive a* color value of -1.0 to +1.0 and a transmissive
b* color value of from 0 to +1.5, and
wherein the flame pyrolysis used to form the anti-reflection coating
causes nanostructures comprising peaks and valleys on an exterior surface of
the anti-reflection coating, the peaks having an average elevation of from
about 5-60nm relative to adjacent valleys, and there being an average gap
distance of from about 10-80nm between adjacent peaks or adjacent valleys,
and
wherein the average gap distance is greater than the average elevation.

In a prior Decision mailed 18 August 2011, we sustained rejections of
claims, which rejections and claims correspond to those before us in the
present appeal, based on the proposition that forming the anti-reflection
coating of Nelson's solar cell via the flame pyrolysis technique disclosed by
Hunt necessarily and inherently would yield the claimed nanostructures (see,

Appeal 2013-009375
Application 11/514,320

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e.g., Dec. 4-6).1 The rejections in the present appeal also are based on this
proposition.

In this appeal, Appellants now present arguments and evidence which
persuade us that Hunt's flame pyrolysis technique would not necessarily
form the claimed nanostructures (Br. 13-15, Lewis Declaration ¶¶ 6, 7, and
11-13). As correctly explained by Appellants, in order to properly reject
claims based on the theory of inherency, the allegedly inherent characteristic
must necessarily and inevitably flow from the applied prior art (Br. 7).
Because the flame pyrolysis of Hunt would not necessarily and inevitably
form the claimed nanostructures, the rejections before us cannot be
sustained.

According to the Examiner, Appellants' above arguments and
evidence are not persuasive because they are not directed to "the specific
conditions disclosed in Hunt" (Ans. 3). However, the only Hunt disclosure
cited by the Examiner (i.e., "5:45-6:9" (FOA 3)) does not recite any "specific
conditions." For this reason alone, we find no convincing merit in the
Examiner's position that Appellants' arguments and evidence are not
sufficient to overcome the inherency-based rejections on appeal.

1 We expressly declined to sustain a rejection based on the Examiner's
apparent belief that the claimed nanostructures would have been obvious in
view of an additional prior art reference to Sopko (Dec. 6-7). To the extent
that such a rejection has been advanced by the Examiner in the present
appeal (see Final Office Action (FOA) ¶ bridging 3-4 last sentence), the
rejection is not sustained for the reasons detailed in our prior Decision.

Appeal 2013-009375
Application 11/514,320

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The decision of the Examiner is reversed.

REVERSED

sld