Ex Parte Mellott et al

Board of Patent Appeals and Interferences

Jun 21, 2011

11284424 (B.P.A.I. Jun. 21, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/284,424 11/22/2005 Nathan P. Mellott 3691-964 5637
23117 7590 06/22/2011
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
LANGMAN, JONATHAN C
ART UNIT PAPER NUMBER
1784
MAIL DATE DELIVERY MODE
06/22/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte NATHAN P. MELLOTT and
THOMAS J. TAYLOR
________________

Appeal 2010-004914
Application 11/284,424
Technology Center 1700
________________

Before TERRY J. OWENS, PETER F. KRATZ, and
JEFFREY T. SMITH, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-8, 10-12 and 19, which are all of the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a photovoltaic device.
Claims 1 and 19 are illustrative:

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1. A photovoltaic device comprising:
a photovoltaic layer and at least a glass substrate on a
light incident side of the photovoltaic layer;
an anti-reflection coating provided on the glass substrate,
the anti-reflection coating being located on a light-incident side
of the glass substrate;
wherein the anti-reflection coating consists essentially of
a graded layer provided directly on and contacting the glass
substrate and a layer comprising silicon oxide over and
contacting the graded layer, the graded layer including a
mixture of silicon oxide and titanium oxide, with more titanium
oxide being provided in a far portion of the graded layer farther
from the glass substrate than in a near portion of the graded
layer closer to the glass substrate, and wherein the graded layer
has a thickness of at least one wavelength; and
wherein the layer comprising silicon oxide has about a
quarter-wavelength thickness and is located on and directly
contacting the graded layer.

19. The photovoltaic device of claim 1, wherein the
glass substrate comprises:
Ingredient wt. %
SiO2 67 - 75 %
Na2O 10 - 20 %
CaO 5 -15 %
total iron (expressed as Fe2O3) 0.001 to 0.06 %
cerium oxide 0 to 0.30 %
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.

The References
Pecoraro 4,792,536 Dec. 20, 1988
Athey 5,356,718 Oct. 18, 1994
Neuman 5,948,131 Sep. 7, 1999
Nelson 6,165,598 Dec. 26, 2000

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The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
8 and 10-12 over Nelson, claim 19 over Nelson in view of Pecoraro,
claims 1-8 and 10-12 over Neuman in view of Athey, and claim 19 over
Neuman in view of Athey and Pecoraro.
OPINION
We reverse the rejections over Nelson and over Nelson in view of
Pecoraro, and affirm the rejections over Neuman in view of Athey and over
Neuman in view of Athey and Pecoraro.
Rejections over Nelson and over Nelson in view of Pecoraro1
Nelson discloses an antireflective glass coating comprising an
iridescence suppressing layer (14) which can gradually transition from
silicon oxide to titanium oxide (col. 3, l. 22; col. 4, ll. 14-23). Nelson does
not disclose the thickness of the graded iridescence supporting layer (14). In
an embodiment wherein the iridescence suppressing layer (14) is a single
component layer, the layer has a thickness of ¼ wavelength of a 500 nm
design wavelength (col. 3, ll. 56-63). In an embodiment wherein the
iridescence suppressing layer (14) consists of two subsequently applied
coating layers (16, 18), each layer has a thickness such that they form a
combined total optical thickness of about 1/6th to about 1/12th of a 500 nm
design wavelength (col. 3, l. 66 – col. 4, l. 6). The iridescence suppressing
layer (14) has thereon a two-layer antireflective coating (20), each layer (22,
24) of which can be silicon oxide and has a thickness of about 700 to about

1 We need to address only claim 1, which is the sole independent claim and
is rejected over Nelson. The Examiner does not rely upon Pecoraro for any
disclosure which remedies the deficiency in Nelson as to claim 1 (Ans. 7-8).
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1500 Å such that it is ¼ wavelength of a 550 nm design wavelength (col. 2,
ll. 8-14; col. 4, ll. 30-36; col. 4, l. 54 – col. 5, l. 12).
The Appellants argue that “Nelson mentions a quarter-wavelength
thickness in connection with the alleged graded layer (e.g., col. 3, lines 55-
63)” (Br. 13)2, “does not teach the claimed thickness for the graded layer”
(Reply Br. 6), and “fails to teach or suggest that the graded layer has a
thickness at least about four (4) times as great as that of the overlying layer
comprising silicon oxide” (Br. 13).
The Examiner relies upon Nelson’s disclosures that “[d]esired
attributes may be obtainable by adjusting the compositions or thicknesses of
the coating layer or layers” (col. 1, ll. 28-30), “[b]y proper choice of thin
film materials and thicknesses, the individual reflected light beams can
destructively interfere thereby reducing the observed visual reflectance”
(col. 1, ll. 44-47), and “[t]he thickness of the iridescence-suppressing layer
utilized in the present inventive coating are dependent upon the specific
iridescence-suppressing layer utilized” (col. 2, ll. 20-23) (Ans. 5, 19). The
Examiner argues that “one of routine skill in the art would have found it
obvious to modify the thickness of the graded iridescence suppressing layer
in order to obtain desired optical properties” (Ans. 20) and that “discovering
an optimum value of a result effective variable involves only routine skill in
the art” (Ans. 6).
Optimizing a result-effective variable within a disclosed range would
have involved no more than routine experimentation. See In re Boesch, 617
F.2d 272, 276 (CCPA 1980). Also, it generally is considered to have been

2 The portion of Nelson cited by the Appellants discloses an iridescence
suppressing interlayer which is a single component layer, not a graded layer.
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prima facie obvious to one of ordinary skill in the art to vary disclosed
parameters to some extent for purposes of optimization. See In re Woodruff,
919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Kulling, 897 F.2d 1147, 1149
(Fed. Cir. 1990); In re Aller, 220 F.2d 454, 456 (CCPA 1955); In re Sebek,
465 F.2d 904, 907 (CCPA 1972).
The Examiner, however, has not pointed out where Nelson discloses
an iridescence suppressing layer thickness range which includes the
Appellants’ thickness of at least about four times that of the antireflective
layer, or provided evidence or technical reasoning which shows that routine
optimization of Nelson’s iridescence suppressing layer thicknesses would
have led to such a thickness ratio. Thus, the record indicates that the
Examiner used impermissible hindsight in rejecting the Appellants’ claimed
photovoltaic device over Nelson. See In re Warner, 379 F.2d 1011, 1017
(CCPA 1967) (“A rejection based on section 103 clearly must rest on a
factual basis, and these facts must be interpreted without hindsight
reconstruction of the invention from the prior art”).
Accordingly, we do not sustain the rejections over Nelson and over
Nelson in view of Pecoraro.
Rejection over Neuman in view of Athey
The Appellants argue claims 1-8 and 10-12 as a group (Br. 16-18).
We therefore limit our discussion to one claim in that group, i.e., claim 1,
which is the sole independent claim. See 37 CFR § 41.37(c)(1)(vii) (2007).
Neuman discloses a multilayer antireflective coating on glass,
comprising a graded layer having thereon an antireflective layer (col. 1,
ll. 16, 39-54). The graded layer “has a continuously changing ratio of
silicon oxide to tin oxide as the distance from the glass-coating interface
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increases, e.g. substantially all silicon oxide at the glass coating interface
and substantially all tin oxide at the opposite surface of the graded layer”
(col. 3, ll. 27-28).3 “The antireflective layer is applied at an optical thickness
that is one quarter the design wavelength, i.e. the wavelength selected for
optimum antireflectance” (col. 1, ll. 60-63). Regarding the thickness of the
graded layer Neuman discloses (col. 4, ll. 50-58):
The thickness of the graded layer must be at least about a
quarter wave optical thickness, but the performance of the
antireflective coating improves as this layer thickness increases.
The maximum thickness is limited primarily by cost. Subtle
variations of the antireflective coating thickness and the graded
layer composition and thickness may be necessary to optimize
the coating performance for a given application or to
compensate for observation angle effects.

In Neuman’s claim 9 the thickness of the graded layer is “about 500 to 3000
Angstroms” and in Neuman’s claim 10 the thickness of the antireflective
layer is “about 400 to 2000 Angstroms.”
The Appellants argue (Br. 16):
Even where Neuman uses a graded layer that is measurably
thicker than the silica (e.g., col. 6:12-16), there is no indication
or suggestion that the graded layer has a thickness at least
about four (4) times as great as that of the overlying layer
comprising silicon oxide. The criticality of this difference in
thickness is described in the original specification, for example,
in paragraphs [0022]-[0027].

That portion of the Appellants’ Specification discloses that “in certain
example embodiments, the graded layer 3a has a thickness of at least one

3 Neuman states that Athey’s metal containing precursors are especially
effective in Neuman’s method (col. 3, l. 66 – col. 4, l. 4). Athey’s metals
include tin and titanium (col. 11, ll. 49-65).
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wavelength of light” (¶ 0022) and that “the thickness of the overcoat
antireflective layer 3b is approximately a ¼ wave thickness (quarter wave
thickness plus/minus about 5 or 10%) so as to act as a destructive
interference coating/layer thereby reducing reflection from the interface
between layers 3a and 3b” (¶ 0024). It does not disclose any criticality to
the graded layer thickness being at least about four times that of the
antireflective layer thickness.
The Appellants argue that “paragraph [0027] states that the graded
index approach allows reflections to be reduced at the interface between the
glass substrate and the graded layer, whereas the destructive interference
allows reflections to be reduced at the interface between layers, which
advantageously increases the power output of a solar cell” (Br. 16-17).
That paragraph discloses a benefit of the graded index approach, but
does not indicate any criticality to a graded layer thickness which is at least
about four times as great as the antireflective layer thickness.
The Appellants argue that the Examiner’s selection (Ans. 23) of the
high end of Neuman’s claim 9 graded layer thickness (3000 Å) in
combination with the low end of Neuman’s claim 10 antireflective layer
range (400 Å) to arrive at a ratio of graded layer thickness to antireflective
layer thickness of 7.5:1 is improper because 1) those end points appear to be
drawn from across all examples which, individually and in the aggregate,
suggest a ratio of about 1:1, 2) none of the examples contemplates a similar
combination of values, and 3) there is no evidence that the combination
would result in a functioning embodiment (Reply Br. 7). The Appellants
argue that “the ratios of the respective low and high endpoints are relatively
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close to the 1:1 ratio that appears to be at the heart of Neuman (and certainly
is at the heart of its specific examples)” (Reply Br. 7-8).
Neuman is not limited to the preferred embodiments or to the
examples. See In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982); In re
Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651
(CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all
disclosures in the reference must be evaluated for what they would have
fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d
961, 965 (CCPA 1966). Neuman discloses that the graded layer must be at
least a quarter wavelength thick, the performance of the antireflective
coating improves as the graded layer thickness increases, and the maximum
thickness of the graded layer is limited primarily by cost (col. 4, ll. 50-54).
Those disclosures would have led one of ordinary skill in the art, in cases in
which cost is not critical, to determine, through no more than routine
experimentation, the large graded layer thickness which maximizes the
antireflective coating performance. Neuman does not limit the combinations
of the graded layer thicknesses in claim 9 and the antireflective layer
thickness in example 10. Neuman, therefore, would have provided one of
ordinary skill in the art with a reasonable expectation of success in using any
combination of those thicknesses, including combinations of thicknesses at
the high end of the graded layer thickness range with thicknesses at the low
end of the antireflective layer thickness range, e.g., a large ratio of graded
layer thickness to antireflective layer thickness such as the Appellants’ ratio
of at least about 4:1. See In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir.
1988) (“Obviousness does not require absolute predictability of success . . . .
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For obviousness under § 103, all that is required is a reasonable expectation
of success”).4
The Appellants argue that Neuman discloses that subtle variations to
the about 1:1 ratio of the minimum graded layer thickness to the
antireflective layer thickness may be necessary (col. 2, ll. 60-62; col. 4,
ll. 50-58), and that an increase to the Appellants’ ratio of at least about 4:1
would not be a subtle variation (Br. 18).
“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” KSR Int’l. Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). In
making an obviousness determination one “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR, 550 U.S. at 418. Neuman’s disclosure that the antireflective
coating’s performance improves as the graded layer thickness increases and
Neuman’s lack of a limitation of the combinations of the graded layer
thicknesses in claim 9 and the antireflective layer thicknesses in claim 10
would have led one of ordinary skill in the art, through no more than
ordinary creativity, to use not only subtle variations of the minimum graded
layer/antireflective layer thickness ratio but also to use higher ratios which
provide improved antireflective coating performance.5
We therefore affirm the rejection over Neuman in view of Athey.

4 Hence, the Appellants’ argument that there is no evidence that the
combination would result in a functioning embodiment (Reply Br. 7) is not
persuasive.
5 Neuman’s 40% increase in the minimum graded layer/antireflective layer
thickness ratio pointed out by the Appellants (Br. 17) does not appear to be
subtle.
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Rejection over Neuman in view of Athey and Pecoraro
Pecoraro discloses a commercial soda-lime-silica glass which contains
66-75 wt% SiO2, 12-20 wt% Na2O, 7-12 wt% CaO, 0-5 wt% MgO, 0-
4 wt% Al2O3, 0-3 wt% K2O and 0-1 wt% Fe2O3 (col. 10, ll. 44-60).
The Appellants argue (Br. 15-16):
There are no facts of record to show that the claimed
visible transmission, a*, and b* values would necessarily be
present in the glass composition of Pecoraro. Indeed, there are
many factors that influence these values. Thus, the fact that
they might be present in the glass composition of Pecoraro is
insufficient to support the rejection of claim 19.

The only required components of Pecoraro’s disclosed commercial
soda-lime-silica glass are SiO2, Na2O and CaO. Those components are all
present in the Appellants’ glass in essentially the same amounts. Hence, it
appears that Pecoraro’s glass containing no iron has essentially the same
color values as the Appellants’ glass which must contain, in addition to the
SiO2, Na2O and CaO, only a very small amount, i.e., 0.001 to 0.06 wt%, of
total iron (expressed as Fe2O3). “[W]hen the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.” In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990). The Appellants have not carried that burden.
Hence, we affirm the rejection over Neuman in view of Athey and
Pecoraro.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1-8 and 10-12 over
Nelson and claim 19 over Nelson in view of Pecoraro are reversed. The
rejections under 35 U.S.C. § 103 of claims 1-8 and 10-12 over Neuman in
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view of Athey and claim 19 over Neuman in view of Athey and Pecoraro are
affirmed.
It is ordered that the Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

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