Ex Parte Varghese et alDownload PDFPatent Trial and Appeal BoardSep 25, 201311860142 (P.T.A.B. Sep. 25, 2013) Copy Citation 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. 11/860,142 09/24/2007 Tansen Varghese 7006 (9456-102576) 6074 7590 09/26/2013 Casey Toohey Emcore Corporation 1600 Eubanks Blvd., SE Albuquerque, NM 87123 EXAMINER CHERN, CHRISTINA ART UNIT PAPER NUMBER 1755 MAIL DATE DELIVERY MODE 09/26/2013 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte TANSEN VARGHESE, ARTHUR CORNFELD, and JACQUELIN DIAZ __________ Appeal 2012-005655 Application 11/860,142 Technology Center 1700 ____________ Before PETER F. KRATZ, BEVERLY A. FRANKLIN, and MICHAEL P. COLAIANNI, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 17-22, 24-29, 33, and 48. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is said to be directed to solar cell semiconductor devices, and particularly to integrated semiconductor structures mounted on Appeal 2012-005655 Application 11/860,142 2 a rigid carrier, such as inverted metamorphic solar cells and a method of making such solar cells (Spec. para. [006]; claims 17 and 28). Claim 17 is illustrative: 17. A method of manufacturing a solar cell comprising: providing a first substrate; depositing on the first substrate a sequence of layers of semiconductors material forming a solar cell; the solar cell including a first solar subcell on said first substrate having a first band gap, a second solar subcell over said first subcell having a second band gap smaller than said first band gap, an InGaAlAs grading interlayer over said second subcell having a third band gap larger than said second band gap, and a third solar subcell having a fourth band gap smaller than said second band gap such that said third subcell is lattice mismatched with respect to said second subcell; mounting a surrogate substrate on top of the sequence of layers; removing the first substrate; mounting the solar cell on a rigid coverglass; and removing the surrogate substrate. Appellants appeal the following rejections: 1. Claims 17-19, 22, 24-29, 33, and 48 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Wanlass (US 2006/0144435 A1, published Jul. 6, 2006) in view of King (US 2005/0274411 A1, published Dec. 15, 2005) and Iles (US 2004/0166681 A1, published Aug. 26, 2004). 2. Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Wanlass in view of King, Iles, and Bianchi (US 2005/0211291 A1, published Sep. 29, 2005). Appeal 2012-005655 Application 11/860,142 3 3. Claim 21 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Wanlass in view of King, Iles, and Henley (US 7,166,520 B1, patented Jan. 23, 2007). Appellants’ arguments focus on the same feature recited in independent claims 17 and 28 of rejection (1) (App. Br. 3-9). We select claim 17 as representative. Appellants do not separately argue claims 20 and 21 of rejections (2) and (3), respectively, instead relying on arguments made regarding claim 17 (App. Br. 9). Therefore, claims 20 and 21 will stand or fall with our analysis of the rejection of claim 17. We note that Appellants do not address the following provisional obviousness-type double patenting rejections of the Examiner (Fin. Off. Act. 11-14): 4. Claims 17-22, 24-29, 32, 33, and 48 over claims 1-20 of copending Application 12/271,127 (abandoned Dec. 3, 2012). 5. Claims 17-22, 24-29, 32, 33, and 48 over claims 1-34 of copending Application 12/102,550 (abandoned Nov. 2, 2012). 6. Claims 17-22, 24-29, 32, 33, and 48 over claims 1-22 of copending Application 11/860,183. 7. Claims 17-22, 24-29, 32, 33, and 48 over claims 1-38 of copending Application 12/023,772 (abandoned Aug. 12, 2012). 8. Claims 17-22, 24-29, 32, 33, and 48 over claims 1, 3, 4, 7-10, 12, 13, 15, 16, 19-22, 24-26, and 28-60 of copending Application 11/445,793 (now U.S. Patent 8,536,445). Appeal 2012-005655 Application 11/860,142 4 Appellants state that they will address the provisional rejections as needed once a claim is allowed (App. Br. 3 n. 2). On this record, we summarily affirm the Examiner’s provisional obviousness-type double patenting rejection (6). The Examiner’s obviousness-type double patenting rejections (4), (5), and (7) are moot as the copending Applications have been abandoned. We decline to reach the merits of the provisional obviousness- type patent rejection (8), as the application has issued as U.S. Patent 8,536,445. Ex parte Jerg, 2012 WL 1375142, *3 (April 13, 2012) (“Panels have the flexibility to reach or not reach provisional obviousness-type double-patenting rejections”). REJECTION (1) ISSUE Did the Examiner reversibly err in concluding that the combined teachings of Wanlass and King1 would have rendered obvious the use of a grading interlayer composed of InGaAlAs as recited in claim 17? We decide this issue in the negative. FINDINGS OF FACT AND ANALYSES Appellants contend that Wanlass uses phosphorus as part of the semiconductor material in every example and teaches that the phosphorus imparts certain properties to the semiconductor material (App. Br. 3-5). 1 We limit our discussion to Wanlass and King because Appellants’ arguments focus solely on the teachings of Wanlass and King (App. Br. 3-9). Appellants do not specifically contest the Examiner’s findings or reasons for combining the teachings of Iles with Wanlass and King. (App. Br. 8). Appeal 2012-005655 Application 11/860,142 5 Appellants argue that while King teaches an InGaAlAs semiconductor layer as relied upon the Examiner, there are many combinations of the elements that compose the InGaAlAs layer and there is no teaching of the particularly claimed lattice matching or band gap (App. Br. 4, 6). Appellants contend that Wanlass teaches away from using King’s aluminum-containing semiconductor material because Wanlass discloses that aluminum getters oxygen and water which are detrimental to the solar cell performance (App. Br. 5). Appellants argue that the Examiner’s reason for combining King’s semiconductor layer with Wanlass are based on generic advantages of a graded layer and are not tied directly to the AlGaInAs layer of King (App. Br. 8). We have fully considered Appellants’ arguments and we find that the preponderance of the evidence favors the Examiner’s conclusion of obviousness. The Examiner’s rejection may be found on pages 6-12 and 19- 22 of the Answer. The Examiner finds that one of ordinary skill in the art would have understood from Wanlass’ teachings that the lattice parameters and band gap may be changed by varying the amount of each element composing the layer (Ans. 19). Appellants do not specifically respond to this analysis of the Examiner. See Reply Br. 1-3. Based on this uncontested finding of the Examiner, we agree that it would have been obvious to manipulate the amount of each element used to make the semiconductor layer to arrive at one having the lattice constant and band gap as recited in claim 17. Indeed, the Examiner relies on Wanlass to teach a solar cell having the semiconductor layers arranged with the lattice constant and band gaps as recited in claim 17 (Ans. 5). Accordingly, contrary to Appellants’ argument, the Examiner reasonably determines Appeal 2012-005655 Application 11/860,142 6 based on the teachings of King and Wanlass that one of ordinary skill would have modified King’s AlGaInAs layer to have the desired lattice constant and band gap to comport with Wanlass’s solar cell structure. Appellants argue that neither King nor Wanlass provide sufficient guidance to suggest selection of an AlGaInAs material with the appropriate composition such that it would have rendered obvious subject matter of claim 17 that specifies both the InGaAlAs composition and band gap (App. Br. 6). Appellants contend that King fails to disclose how to select the particular composition of the AlGaInAs layer so as to satisfy the limitations of claim 17 (App. Br. 6). However, these arguments fail to address specifically the Examiner’s determination that one of ordinary skill presented with the teachings of Wanlass and King would have optimized the various elements making up the graded interlayer as a result-effective variable to achieve the desired band gap and lattice constant (Ans. 19-21). Appellants’ argument that Wanlass’ teaching to use only phosphorus- containing semiconductor materials and that aluminum-containing semiconductor materials are not desired amounts to a teaching away from King’s InGaAlAs material is not persuasive. While Wanlass exemplifies using phosphorus-containing materials and teaches properties attributable to the use of phosphorus, Wanlass further discloses that the exemplified embodiments are not exclusive subcell materials (Wanlass para. [0028]). Wanlass’ teachings regarding aluminum-containing semiconductor materials do not amount to a teaching away. As the Examiner finds, Wanlass discloses a mere preference for aluminum-free materials and exemplifies using aluminum-containing semiconductor material (Ans. 21-22). Appeal 2012-005655 Application 11/860,142 7 Appellants’ argument that Examiner’s reason for combining King’s AlGaInAs layer is based on too general of a teaching is not persuasive. Rather, King discloses in paragraph 20 the advantages of using a graded layer which is followed in the subsequent paragraph by a description of the suitable embodiments employing graded layer (King, paras. [0020]-[0021]). King’s paragraph [0021] discloses a graded layer of AlGaInAs which is would have reasonably been understood from King’s disclosure as possessing and imparting the desired properties to the solar cell. Appellants’ argument that Wanlass teaches away from using quaternary compounds such as InAlGaAs in favor of ternary compounds (e.g., GaInP) is undermined by the Examiner’s well supported finding that Wanlass teaches using InGaAlAsP in many cases (Ans. 22). Indeed, paragraph 0039 of Wanlass discloses that the AlGaInAsP may comprise the transparent layer but GaInP is simpler. In other words, while Wanlass may prefer ternary compounds such is not a teaching away from using quaternary compounds. On this record, we affirm all of the Examiner’s § 103 rejections. DECISION 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). ORDER AFFIRMED cam Copy with citationCopy as parenthetical citation