Stephen Whitelegg et al.Download PDFPatent Trials and Appeals BoardNov 29, 201914075826 - (D) (P.T.A.B. Nov. 29, 2019) Copy Citation 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. 14/075,826 11/08/2013 Stephen Whitelegg 038-0063US 6358 15971 7590 11/29/2019 Nanoco c/o Blank Rome LLP 717 Texas Avenue, Suite 1400 Houston, TX 77002 EXAMINER TRAN, UYEN M ART UNIT PAPER NUMBER 1726 NOTIFICATION DATE DELIVERY MODE 11/29/2019 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): houstonpatents@blankrome.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEPHEN WHITELEGG, TAKASHI IWAHASHI, PAUL KIRKHAM, CARY ALLEN, ZUGANG LIU, STUART STUBBS, and JUN LIN Appeal 2018-008302 Application 14/075,826 Technology Center 1700 Before LINDA M. GAUDETTE, MONTÉ T. SQUIRE, and SHELDON M. MCGEE, Administrative Patent Judges. MCGEE, 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 1–7, 10, 11, and 15–20. We have jurisdiction. 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(a). Appellant identifies the real party in interest as Nanoco Technologies Ltd. Appeal Br. 4. Appeal 2018-008302 Application 14/075,826 2 SUBJECT MATTER The subject matter on appeal is directed to photovoltaic cells used in electricity production. Spec. ¶¶ 1–2. Sole independent claim 1, reproduced below, is illustrative: 1. A structure, comprising: a support; a molybdenum substrate comprising: a first low-density molybdenum layer disposed2 on the support; a high-density molybdenum layer disposed on the first low-density molybdenum layer; and a second low-density molybdenum layer disposed on the high-density molybdenum layer; and a layer of photo-absorbing material disposed on the molybdenum substrate. Br. 21 (Claims Appendix). REFERENCES Name Reference Date Kushiya et al. US 2008/0271781 A1 Nov. 6, 2008 Krasnov et al. US 2009/0020157 A1 Jan. 22, 2009 Calzia et al. US 2012/0082749 A1 Apr. 5, 2012 Jee et al. WO 2010/147392 A2 Dec. 23, 2010 Scofield et al., Sputtered Molybdenum bilayer back contact for copper indium diselenide-based polycrystalline thin-film solar cells, Thin Solid Films, Vol. 260, pages 26–31, 1995. Salomé et al., Mo bilayer for thin film photovoltaics revisited, J. Phys. D: Appl. Phys., 43, 345501, pages 1–7, 2010. 2 The Examiner undisputedly determines that the claims do not require direct application of the “first” molybdenum layer to the support and subsequent molybdenum layers to each other. Ans. 15. Appeal 2018-008302 Application 14/075,826 3 REJECTIONS On appeal, the Examiner maintains the following rejections under 35 U.S.C. § 103(a): I. Claims 1, 16, and 20 over the combined disclosures of Kushiya and Scofield; II. Claims 2–5 over the combined disclosures of Kushiya, Scofield, and Salomé; III. Claims 6 and 7 over the combined disclosures of Kushiya, Scofield, and Krasnov; IV. Claims 10, 11, and 15 over the combined disclosures of Kushiya, Scofield, and Jee; and V. Claims 17–19 over the combined disclosures of Kushiya, Scofield, and Calzia. OPINION Rejection I We focus our discussion on claim 1, which is the only claim argued by Appellant with respect to this ground of rejection. Br. 12–15. The Examiner finds Kushiya’s Figure 1 discloses each limitation of claim 1––including a multi-layer molybdenum substrate 3––but does not disclose that the molybdenum substrate has alternating low and high density layers as recited. Final Act. 3–4. Kushiya’s Figure 1 is depicted below: Appeal 2018-008302 Application 14/075,826 4 Kushiya’s Figure 1 illustrates the structure of a CIS type thin film solar cell, including glass substrate 2, silica layer 7, metallic back electrode layers 3a and 3, and a light absorbing layer 4. Kushiya ¶¶ 72, 80–86, Fig. 1. Kushiya discloses the “multilayered metallic back electrode layer 3 may have a multilayer structure composed of three or more layers, and may be made of Mo (molybdenum).” Id. ¶ 49. To address the difference between Kushiya’s disclosure and the claimed subject matter, the Examiner turns to the teachings of Scofield, which the Examiner finds discloses a solar cell containing a molybdenum bilayer formed by sputtering a thin layer of high pressure (i.e., low density), followed by a layer with low pressure (i.e., high density), which is taught to achieve good adhesion and low sheet resistance. Id. at 4. The Examiner determines that the skilled artisan would have been motivated “to form the four Mo layers of Kushiya by alternatively sputtering [a] Mo layer with high Appeal 2018-008302 Application 14/075,826 5 pressure and follow[ with a] Mo layer with low pressure” in order to obtain “good adhesion and low sheet resistance” as taught by Scofield. Id. Appellant does not dispute the Examiner’s findings regarding the teachings of Kushiya and Scofield as set forth in the rejection. Br. 12–15. Rather, Appellant asserts that Kushiya’s first layer 3a as depicted in Figure 1 is disclosed as having “high density”––the opposite of the “first low-density molybdenum layer” as claimed. Id. at 13–14. This argument is not persuasive of reversible error in the rejection. The Examiner does not rely on the teachings of Kushiya to disclose the “first low-density molybdenum layer” limitation. Rather, the Examiner expressly finds that Kushiya fails to disclose this limitation. Final Act. 4 (“Kushiya [] does not disclose the Mo substrate having low and high density Mo layer as claimed.”). Notably, Appellant does not address the relied-upon teachings of Scofield with any degree of specificity, stating that “Scofield does not remedy the deficiencies of Kushiya.” Br. 14. At best, Appellant’s arguments are directed to the teachings of Kushiya alone and not what the combined teachings of Kushiya and Scofield would have suggested to the skilled artisan. Such arguments cannot establish non-obviousness. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.”). Thus, for these reasons and those provided by the Examiner, we sustain Rejection I. Appeal 2018-008302 Application 14/075,826 6 Rejections II and III Appellant does not advance any argument against these grounds of rejection beyond that provided for Rejection I. Br. 15–16. Rather, Appellant states that the Salomé reference (Rejection II) and Krasnov reference (Rejection III) do not remedy the perceived deficiencies in the underlying combination of Kushiya and Scofield. Because Appellant failed to identify reversible error in Rejection I, based on Kushiya and Scofield, we likewise sustain these rejections for the reasons provided with respect to Rejection I. Rejection IV Each of claims 10, 11, and 15 depend from claim 1 and recite specific resistivities of one or more molybdenum layers. The Examiner rejects these claims based on the combined disclosures of Kushiya, Scofield, and Jee, finding that Jee establishes that a molybdenum layer’s resistivity depends on the power with which it is sputtered. Final Act. 10 (citing Jee ¶¶ 37, 45). Based on this finding, the Examiner determines that a molybdenum layer’s resistivity is an optimizable result effective variable, and that the recited resistivity values would, therefore, have been obvious. Id. In addition to relying on the deficient argument set forth with respect to the rejection of claim 1 (Rejection I), Appellant also asserts that Jee teaches away from the claimed subject matter because “Jee teaches that a high-density molybdenum layer exhibits superior adhesion to supports as compared to low-density molybdenum layers.” Br. 17 (citing Jee ¶¶ 37, 48, 59). Appeal 2018-008302 Application 14/075,826 7 This argument is not persuasive. The portions of Jee cited by Appellant do not appear to address adhesive strength. See Jee ¶¶ 37, 48, 59. Furthermore, Jee appears to suggest that conductive layer grain size plays a role in adhesive strength––a parameter that Appellant does not address. Br. 16–17; Jee ¶¶ 12, 49. For these reasons, and those provided by the Examiner, Rejection IV is sustained. Rejection V Because Appellant argues the claims subject to this ground of rejection as a group, we select claim 17 and decide Rejection V on the basis of claim 17 alone. 37 C.F.R. § 41.37(iv). Our discussion of claim 17 begins with claim 16 from which this claim directly depends. In the rejection of claim 16, the Examiner determined the recitation “situated to absorb contaminants generated in the photo-absorbing material” amounts to functional language not entitled to patentable weight. Final Act. 4–5. Notably, Appellant does not dispute the Examiner’s determination. See Br. 12–15. Claim 17 identifies the contaminants generated in the photo-absorbing material as “organic.” Appellant makes several assertions regarding Calzia (Br. 17–19), but such assertions lack persuasive merit because Appellant has not established that the language contained in claim 17, and claim 16 from which it depends, is indeed a limitation entitled to patentable weight. As such, Appellant’s assertions regarding Calzia amount to arguing limitations not recited in the claims. Such arguments are unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because . . . they are not based on limitations appearing in the claims.”). Appeal 2018-008302 Application 14/075,826 8 Furthermore, to the extent the language of claim 17 may be deemed a limitation, Appellant’s arguments regarding Calzia are unpersuasive for the well-stated reasons provided by the Examiner. Final Act. 12–13; Ans. 17– 18. Rejection V is, therefore, sustained. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 16, 20 103(a) Kushiya, Scofield 1, 16, 20 2–5 103(a) Kushiya, Scofield, Salomé 2–5 6, 7 103(a) Kushiya, Scofield, Krasnov 6, 7 10, 11, 15 103(a) Kushiya, Scofield, Jee 10, 11, 15 17–19 103(a) Kushiya, Scofield, Calzia 17–19 Overall Outcome 1–7, 10, 11, 15–20 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 Copy with citationCopy as parenthetical citation