Ex Parte PongDownload PDFPatent Trial and Appeal BoardNov 6, 201711529357 (P.T.A.B. Nov. 6, 2017) 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. 11/529,357 09/29/2006 Fong Pong 1875.9040001 8328 49579 7590 11/08/2017 STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. 1100 NEW YORK AVENUE, N.W. WASHINGTON, DC 20005 EXAMINER BYRNE, HARRY W ART UNIT PAPER NUMBER 2824 NOTIFICATION DATE DELIVERY MODE 11/08/2017 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): e-office @ skgf.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FONG PONG Appeal 2016-002217 Application 11/529,3571 Technology Center 2800 Before ST. JOHN COURTENAY III, JOHN A. EVANS, and SCOTT B. HOWARD, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection of claims 1—13 and 21—23, which constitute all of the claims pending in this application. Claims 14—20 and 24—30 have been cancelled and claims 31—34 have been withdrawn. App. Br. 14,15. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held on August 15, 2017. A copy of the transcript (“Tr.”) has been made of record. We affirm. 1 Appellants identifies Broadcom Corporation as the real party in interest. App. Br. 3. Appeal 2016-002217 Application 11/529,357 THE INVENTION According to Appellant, the disclosed and claimed invention relates to communication “between System On Chip (SOC) units in a cluster configuration.” Abstract. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A local System on Chip (SOC), comprising: a local on-chip memory; and a local controller coupled to the local on-chip memory, the local controller configured to receive a signal from a remote SOC, to retrieve a message from a remote on-chip memory of the remote SOC in response to receiving the signal, and to store the message in the local on-chip memory. REFERENCE The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Hartsell US 2003/0236745 A1 Dec. 25, 2003 REJECTION Claims 1—13 and 21—23 stand rejected under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Hartsell. Final Act. 2—5. ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s arguments that the Examiner erred. In reaching this decision, we have considered all evidence presented and all arguments made by Appellant. We are not persuaded by Appellant’s arguments regarding claims 1—13 and 21— 23. 2 Appeal 2016-002217 Application 11/529,357 Procedural History This is the second time the claimed invention is before us.2 In the first appeal, we affirmed the Examiner’s rejection of the then pending claims as anticipated by Hartsell. Ex parte Pong, No. 2011-010751, slip op. (PTAB Feb. 26, 2014) (hereinafter “PongP’), reh ’g denied, slip op. (PTAB April 30, 2014) (hereinafter “Pong IE’). In Pong I, then pending claim 1 stated as follows: 1. A local System on Chip (SOC), comprising: a local controller; and local on-chip memory; wherein in response to receiving a signal from a remote SOC, the local controller is configured to retrieve a message from a remote on-chip memory of the remote SOC and store the message in the local on-chip memory. Pong I, 2 (hereinafter “Pong I claim 1”). During the original appeal, Appellant’s argument focused “on the configured limitation presented in the “wherein” clause of claim 1 and argue[d] that a local node (such as storage management engine 1040) of Hartsell receives a message from a remote node (such as application 2 Appellant did not identify any related proceedings, including the earlier appeal, Appeal No. 2011-010751. Appellant and Appellant’s counsel are reminded of the obligation to comply with the requirements of 37 C.F.R. § 41.37(c)(ii), which requires, inter alia, “[a] statement identifying by application, patent, appeal, interference, or trial number all other prior and pending appeals, interferences, trials before the Board, or judicial proceedings (collectively, ‘related cases’) which satisfy all of the following conditions: involve an application or patent owned by the appellant or assignee, are known to appellant, the appellant’s legal representative, or assignee, and may be related to, directly affect or be directly affected by or have a bearing on the Board’s decision in the pending appeal.'” (emphasis added). 3 Appeal 2016-002217 Application 11/529,357 processing engine 1070) and sends data back to the remote node.” Id. at 4. According to Appellant, the claimed invention recited that “the local controller (node) receives a signal from the remote SOC (node) and the local controller (node) retrieves a message from the remote SOC rather than sending data or a message to the remote SOC, as in Hartsell.” Id. That is, Appellant “focuses the argument on the recited controller configuration functionality and contests the Examiner’s anticipation rejection over Hartsell on the basis that Hartsell does not explicitly describe that the relied upon local controller structure thereof performs the specific messaging protocol/functionality expressed in the claim 1.” Id. We rejected that argument, and found: the Examiner appears to have reasonably found that the relied upon controller structure of Hartsell, which structure Appellant seemingly acknowledges as being capable of receiving a message (signal), would be reasonably expected to possess the further capability of following any instruction/programming received via such a received message/signal including an instruction to retrieve a remotely stored message and locally store the message. Id. at 5. As we further explained in denying the request for rehearing: In other words, the functional language that is argued here is directed to a claim limitation that encompasses a controller that has the fimctionality/capability of acquiring a controller configuration (being programmed) to retrieve a message from a remote SOC and to locally store the message “in response to receiving a signal from a remote SOC” and is not limited to a pre-conjigured controller for retrieving such a message and storing it locally. Pong II, 2 (emphasis added). We also sustained the Examiner’s rejection of dependent claim 3, which was separately argued. Pong I, 6. 4 Appeal 2016-002217 Application 11/529,357 In a Request for Continued Examination following Pong II, Appellant amended claim 1 as follows: “the local controller configured to receive a signal from a remote SOC, to retrieve a message from a remote on-chip memory of the remote SOC in response to receiving the signal, and to store the message in the local on-chip memory.” App. Br. 8. According to Appellant, as a result of the amendment, “the local controller is now pre configured as opposed to being post-configured ‘in response to receiving a signal from a remote SOC.’” Id. Claims 1, 2, 4, 5, 7—12 and 21—23s The Doctrine of Law of the Case Precludes Re-argument “The doctrine of law of the case generally bars retrial of issues that were previously resolved.” Intergraph Corp. v. Intel Corp., 253 F.3d 695, 697 (Fed. Cir. 2001). The doctrine “expresses the practice of courts generally to refuse to reopen what has been decided.” Messenger v. Anderson, 225 U.S. 436, 444 (1912). The doctrine applies to both explicit determinations as well as all “necessary inferences from the disposition.” Kori. Corp. v. Wilco Marsh Buggies & Draglines, Inc., 761 F.2d 649, 657 (Fed. Cir. 1985). According, the doctrine of the law of the case is a judicially created doctrine which “operates to protect the settled expectations of the parties and promote orderly development of the case.” Suel v. Secretary ofHHS, 192 F.3d 981, 984 (Fed. Cir. 1999) (citing Mendenhall v. Barber—Greene Co., 26 F.3d 1573, 1582 (Fed.Cir.1994), Little Earth of the 3 Claims 1, 2, 4, 5, 7—13, and 21—23 are argued as a group. Pursuant to 37 C.F.R. § 41.37(c)(iv), we select claim 1 from the group and decide the appeal of the ground with respect to that claim. 5 Appeal 2016-002217 Application 11/529,357 United Tribes v. Department of HUD, 807 F.2d 1433, 1441 (8th Cir.1986)). It “ensures judicial efficiency and prevents endless litigation. Its elementary logic is matched by elementary fairness — a litigant given one good bite at the apple should not have a second.” Perkin—Elmer Corp. v. Computervision Corp., 732 F.2d 888, 890 (Fed. Cir. 1984), cited by Suel, 192 F.3d 984—85. Applying this guidance here, we find the law of the case doctrine is equally applicable to PTAB proceedings when a Board panel is reviewing the same previously decided issue during a subsequent appeal from the same patent application. In such case, we should properly refuse to reopen what has already been decided: Over such a long period of time, the composition of the panels of this court and the judge assigned to the case at the trial level has necessarily changed. As a matter of course, different judges looking at the same case may not view it in the same way. But under the law of the case, we must give respect and force to legal decisions rendered by earlier panels, absent a clear showing of error or injustice. Any other result would unduly prolong this already drawn-out litigation. Hughes Aircraft Co. v. United States, 86 F.3d 1566, 1577 (Fed. Cir. 1996), vacated on other grounds, United States v. Hughes Aircraft Co., 520 U.S. 1183 (1997), affd on remand, 140 F.3d 1470 (Fed. Cir. 1998) (emphasis added). Although the doctrine of the law of the case is judicially created, it has also been routinely applied by federal administrative agencies to give preclusive effect to their earlier decisions in the same matter.4 * 6Consistent 4 See, e.g., Freeman United Coal Mining Co. v. Benefits Review Bd., Dep’t of Labor, 912 F.2d 164, 168 (7th Cir. 1990) (recognizing the Benefits Review Board applies law of the case to its earlier decisions); 6 Appeal 2016-002217 Application 11/529,357 with other administrative bodies, the Board has applied the law of the case doctrine and held that all findings and conclusions in a first decision by the Board—whether express or implicit—are entitled to issue-preclusive effect during further prosecution of the same application. Ex parte Fisher, No. 2013-000663, 2015 WL 5782991, *4 (PTAB Sept. 16, 2015); Ex parte Keggenhoff, No. 2012-001720, 2014 WL 3950403, *A-5 (PTAB Aug. 11, 2014); Ex parte Wood, No. 2010-006834, 2012 WL 2929626, *3 (BPAI July 12, 2012); PTAB Standard Operating Procedure 2, Rev. 9, § VI(B)5 (“An opinion is binding law of the case, even if it is not designated as precedential, informative, or representative.”). Under the doctrine of law of the case, the Board will generally adhere to a decision in a prior appeal in the same case unless one of three exceptions exist: (1) the evidence in a subsequent appeal contains new and Inc., 353 NLRB 133, 134 (2008) (Board precedent bars relitigation of issues in a compliance proceeding previously decided in underlying unfair labor practice proceeding), citing Great Lakes Chem. Corp., 300 NLRB 1024, 1025 n.3 (1990), enfd. 967 F.2d 624 (D.C. Cir. 1992) (factual finding necessary to support judgment in a prior proceeding bars relitigation of issue in a subsequent proceeding involving the same parties); In re Hydro Res. Inc., 62 N.R.C. 77, 87 (2005) (“The Taw of the case’ doctrine, which is a common law rule applicable to NRC adjudicative proceedings, establishes that the decision of an appellate tribunal should ordinarily be followed in all subsequent phases of that case.”); Mudrich v. Dep’t. of Agri., 93 M.S.P.R. 313,314 (MSPB 2003) (“Under the law of the case doctrine, a tribunal will not reconsider issues that have already been decided in an appeal.”); Willaims v. Lumbermen’s Mut. Cas. Co., 22 Ben. Rev. Bd. Serv. 234, 1989 WL 245284, *2 (May 30, 1989) (“The Board's prior decision regarding this issue is the law of the case and we will not reconsider it.”); Teledyne Cont’l Motors, Gen. Prod. Div., ASBCA No. 48364, 96-2 BCA128523, 1996 WL 478738 (applying law of the case to previous final administrative order). 5 https://www.uspto.gov/sites/default/files/documents/sop2-revision-9-dated- 9-22-2014.pdf (last accessed Sept. 13, 2017). 7 Appeal 2016-002217 Application 11/529,357 different material evidence; (2) there has been an intervening change of controlling legal authority; or (3) the earlier ruling was clearly erroneous and would work a manifest injustice. See Intergraph Corp. v. Intel Corp., 253 F.3d 695, 698 (Fed. Cir. 2001); Ormco Corp. v. Align Tech., Inc., 498 F.3d 1307, 1319 (Fed. Cir. 2007); Gould, Inc. v. United States, 67 F.3d 925, 930 (Fed. Cir. 1995). Therefore, as an initial matter, we must first determine whether under doctrine of the law of the case, our decisions in Pong I and Pong II have preclusive effect and require an affirmance of the Examiner’s rejection without considering the merits of the arguments raised in the Appeal Brief. Appellant does not directly address the doctrine of the law of the case. See, generally, App. Br.; Reply Br. However, based on our review of the record, we do not identify any new and different material evidence or any intervening change in the law. Nor do we see how applying the doctrine of the law of the case in this appeal will result in a manifest injustice. Accordingly, the doctrine of the law of the case applies and Appellant is precluded from rearguing factual findings made—either expressly or inherently—in Pong I and Pong II, mainly that Hartsell teaches each and every limitation of the Pong I claim 1, along with the dependent claims. Although we find that the doctrine of the law of the case applies, that doctrine does not necessarily necessitate an affirmance of the Examiner’s rejection in this appeal. Specifically, if, as Appellant argues, the amendment to claim 1 materially changed the scope of the claims, then the preclusive effect of Pong I and Pong II is not relevant because we would not have previously determined whether or not Hartsell discloses all of the limitations of claim 1. On the other hand, if the amendment did not materially change 8 Appeal 2016-002217 Application 11/529,357 the scope of Pong I claim 1 or resulted in a broader claim, our prior determination that Hartsell discloses all of the limitations of Pong I claim 1 is preclusive in this appeal. See Wood, 2012 WL 2929626 at *3 (“That claim 1 in this appeal recites ‘N’ bias pulses and resulting signals (where N is two or more) instead of the former ‘two or more’ language in connection with the pulses and resulting signals in the earlier appeal is a distinction without a meaningful difference in this regard.” (footnote omitted)). Accordingly, application of the doctrine of the law of the case in this appeal turns on whether or not claim 1 was amended to require what Appellant calls a pre-configured controller and exclude a post-configured controller. During prosecution, claims must be given their broadest reasonable interpretation while reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad, of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). According to Appellant, the language of amended claim 1 “implies that the ‘local controller’ is pre-configured ‘to retrieve a message from a remote on-chip memory of the remote SOC in response to receiving the signal, and to store the message in the local on-chip memory’ as recited in claim 1.” Reply Br. 3 (italics in original, bold italics added). According to 9 Appeal 2016-002217 Application 11/529,357 Appellant, “[t]he claim does not have to explicitly recite pre-configuration for the ‘local controller’ to be pre-configured.” Id. However, claim 1 does not recited the term pre-configured. See App. Br. 13 (Claim App’x). Nor does claim 1 use language to clearly denote that the specific configuration must exist prior to receiving the signal from the remote SOC. See id. Instead, the claim merely uses the word “configured” and does not impose any temporal limitation on when the configuration must exist. We disagree with Appellant that the language of claim “implies” a pre-configured controller. Accordingly, broadest reasonable construction of the term encompasses a controller that is configured to receive, retrieve and store, as recited in claim 1, regardless of when it becomes so configured. In support of its claim construction argument, Appellant relies on Typhoon Touch Techs., Inc. v. Dell, Inc., 659 F.3d 1376 (Fed. Cir. 2011) and Ex Parte Tsutsumi, No. 2010-005520, 2012 WL 6107993 (PTAB Nov. 6, 2012). Reply Br. 3—5. However, neither cases support Appellant’s argument that configured means pre-configured and excludes post- configured. Instead, as discussed below, both cases merely stand for the proposition that configured merely requires that the device be actually configured as opposed to being capable of being modified so as to be configured to achieve a claimed result. Neither cases discusses any temporal limitation on when the configuration must take place, just that the product needs to be configured as required by the claim at some point in time. According to Appellant, in Typhoon our reviewing court held “that the apparatus as provided must be ‘capable’ of perfoming the recited function (i.e. pre-configured), not that it might later be modified to perform that function (i.e. post-configured).” Id. at 4. However, that does not accurately 10 Appeal 2016-002217 Application 11/529,357 describe the issue or holding in Typhoon. In Typhoon, the issue was not when a device was configured, but whether it was actually configured as opposed to merely being capable of being modified so that it could be configured to perform the claimed function: Thus Typhoon states that it suffices if the memory is capable of being configured to store data collection applications, even if the memory is not so configured. Typhoon emphasizes that the claims are not method claims, and that it is irrelevant if the function is actually performed by the device, if the device can be programmed or configured to perform the function, citing Microprocessor Enhancement Corp. v. Texas Instruments, Inc., 520 F.3d 1367 (Fed. Cir. 2008). In Microprocessor, this court recognized that apparatus claims may appropriately use functional language. However, the court did not deal with the situation in which an apparatus does not perform the function stated in the claim unless the apparatus is specifically so programmed or configured. The court explained that the apparatus as provided must be “capable” of performing the recited function, not that it might later be modified to perform that function. See id. at 1375 (“[the claim] is clearly limited to a pipelined processor possessing the recited structure and capable of performing the recited functions”) (emphasis omitted). Similarly in Fantasy Sports Props., Inc. v. Sportsline.com, Inc., 287F.3d 1108,1117—18 (Fed. Cir. 2002), the court rejected “the proposition, as argued by Fantasy, that infringement may be based upon a finding that an accused product is merely capable of being modified in a manner that infringes the claims of a patent. ” See also Telemac Cellular Corp. v. Topp Telecom, Inc., 247 F.3d 1316, 1330 (Fed. Cir. 2001) (“[T]hat a device is capable of being modified to operate in an infringing manner is not sufficient, by itself, to support a finding of infringement.”); High Tech Med. Instrumentation, Inc. v. New Image Indus., Inc., 49 F.3d 1551, 1555—56 (Fed. Cir. 1995) (the fact that the accused device could be altered in a way that satisfies the claim term did not lead to infringement). 11 Appeal 2016-002217 Application 11/529,357 659 F.3d at 1380 (emphasis added). Although Typhoon holds the device must actually be configured as opposed to being capable of being modified to perform the function, Typhoon does not impose any temporal limitations of when the device must actually be configured. Citing Tsutsumi, Appellant also argues “[pjrior decisions by the PTAB have also established that functional limitations in a pre-configured apparatus claim can patentably distinguish the claimed apparatus from a prior art device when the prior art device has to be post-configured with one or more of the functional limitations.” Reply Br. 4. However, just like Typhoon, this case is not persuasive because it focuses on whether the device is actually configured to perform a function as opposed to capable of being modified to perform a function. See Tsutsumi, 2012 WL 6107993 at *2. Specifically, in Tsutsumi the Board held that “[ajnticipation requires the prior art apparatus as provided to be capable of performing the recited function, not merely one that might later be modified to include such capability, for example, by altering its programming.” Id.6 Just as in Typhoon, Tsutsumi does not address the timing of when the prior art must be configured, just that it must be configured at some time as opposed to being capable of being modified to achieve that capability. Accordingly, we conclude that although Appellant amended claim 1 subsequent to Pong I and Pong II, the amendment did not materially narrow the scope by required a pre-configured controller and excluding a post- configured controller. Therefore, the doctrine of law of the case applies and, 6 We note Appellant’s emphasized, inter alia, this sentence when quoting from the Decision. Reply Br. 5. 12 Appeal 2016-002217 Application 11/529,357 based on the findings of fact and conclusions of law in Pong I and Pong II, we sustain the Examiner’s rejection of claims 1, 2, 4, 5, 7-13, and 21—23. Appellant’s Argument Is not Commensurate with the Scope of the Claims Even if we did not apply the doctrine of the law of the case, because Appellant’s argument is not commensurate with the scope of the claims, we would still sustain the Examiner’s rejection of claims 1, 2, 4, 5, 7-13, and 21-23. Appellant argues the Examiner erred in finding Hartnell discloses a local controller which receivefs] a signal from a remote SOC’ and in response to receiving the signalc retrieve[sj a message from a remote on- chip memory of the [same] remote SOC that sent the signal,” as recited in claim 1. App. Br. 10 (alterations and emphasis in original). As counsel stated during the oral hearing, the only issue on appeal is whether the message is retrieved from the same remote SOC that sends the signal. Tr. 9:22-25. Appellant’s argument is premised on the claim requiring a single remote SOC so that the controller receives a signal from a remote SOC and then retrieves a message from the same remote SOC: There is no description in paragraph [0047] of Hartsell of receiving a signal from the remote browser client and in response to the signal, retrieving a message from the same remote browser client that sent the signal. . . . Thus, in response to receiving a signal (i.e. a request for content) from application processing engine 1070, storage management engine 1040 of Hartsell never retrieves content from application processing engine 1070. Rather, storage management engine 1040 retrieves content from a designated content source 1090 or 1100. In contrast, in the claimed 13 Appeal 2016-002217 Application 11/529,357 embodiments, the local controller “receive/s] a signal from a remote SOC” and in response to receiving the signal “retrieve^j a message from a remote on-chip memory of the [same] remote SOC’ that sent the signal. This is in sharp contrast to HartselTs description where upon receiving a signal from application processing engine 1070, storage management engine 1040 never retrieves any content from application processing engine 1070 that originated the signal. The Examiner did not respond to Appellant’s arguments in the Advisory Action. App. Br. 9-10; see also Tr. 5:3—19. However, we disagree with Appellant’s claim construction. Instead, for the reasons discussed below, the broadest reasonable interpretation does not require the controller must be configured to both receive a signal and retrieve a message from the same remote SOC. Appellant’s argument is premised on the articles used in front of “remote SOC.” See Tr.6:14—20 (“MR. ASTHANA: Your Honor, I believe since the signal is from a particular remote SOC, and then it requires that it retrieves the data from the same remote SOC that sent the message, mostly because the signal is being sent by a remote SOC and so I don't see how it could be — another of these could be considered as the same remote SOC because they did not send the message. The message was sent by a particular SOC and it has to be retrieved from the remote SOC.”). According to Appellant, because of the claim recited the indefinite “a” the first time the remote SOC is mentioned and the definite “the” the second time, it is referring to the same SOC. Id. at 6:1—6. That is, Appellant argues that because “a remote SOC” is the antecedent basis for “the remote SOC,” the claims must require the same remote SOC. Id. at 6:1—20. Implicit in Appellant’s argument is that “a remote SOC” only encompasses a single remote SOC in order for the remote SOC to necessarily refer to the same remote SOC. See Tr. 6:14—120, 15:14—23. 14 Appeal 2016-002217 Application 11/529,357 However, that assumption is not consistent with the broadest reasonable construction of “a remote SOC.” Instead, the broadest reasonable construction of “a remote SOC” encompasses one or more remote SOCs. See Baldwin Graphic Sys. v. Siebert, Inc., 512 F.3d 1338, 1342—43 (Fed. Cir. 2008) (holding that an indefinite article such as “an” in a comprising claims generally means one or more “the claims themselves, the specification, or the prosecution history necessitate a departure from the rule”). Because the broadest reasonable interpretation of “remote SOC” is encompasses a group of remote SOCs, claim 1 is broad enough to encompass receiving a message from one remote SOC while retrieving a message from a different SOC so long as they are part of the plurality of remote SOCs. Moreover, Appellant’s Appeal Brief highlights the fact that claim 1 does not require the same remote SOC for receiving and retrieving. When Appellant makes its argument, Appellant quotes the relevant language from claim 1, using brackets to indicate that Appellant was adding the word same to the claim: “In contrast, in the claimed embodiments, the local controller ‘receive[s] a signal from a remote SOC’ and in response to receiving the signal ‘retrieve[s] a message from a remote on-chip memory of the [same] remote SOC’ that sent the signal.” App. Br. 10 (emphasis in original omitted, emphasis added, alternations to claim language in original). Appellant’s addition the word “same” into the claim is further evidence that the broadest reasonable construction of the claim limitation does not require the same remote SOC. Cf. Tr. 6:1—6 (counsel explaining that same was added “for clarification and ease of reading). 15 Appeal 2016-002217 Application 11/529,357 Because Appellant’s arguments are not commensurate with the scope of the claims, they are unpersuasive. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Accordingly, we sustain the Examiner’s rejection of claim 1, along with the rejections of dependent claims 2, 4, 5, 7—13, and 21—23, which are not separately argued. See App. Br. 10 Claim 3 Appellant argues the Examiner erred in finding Hartsell discloses the additional limitation recited in claim 3. App. Br. 10—11. Because the additional limitation in claim 3 is identical to the additional limitation of claim 3 in Pong I and Appellant’s argument is substantially the same as presented, and rejected, during the previous appeal, we apply the doctrine of the law of the case. Accordingly, we sustain the Examiner’s rejection of claim 3. Claim 6 The Appeal Brief states that claim 6 was separately addressed. See App. Br. 10 (“Claims 3 and 6 in particular are addressed below.”). However, there is no separate argument directed to claim 6. See App. Br. 10-12. “If an appellant fails to present arguments on a particular issue—or, more broadly, on a particular rejection—the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.” Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). Accordingly, for the reasons discussed above for claim 1, we sustain the Examiner’s rejection of claim 6. 16 Appeal 2016-002217 Application 11/529,357 DECISION For the above reasons, we affirm the Examiner’s decisions rejecting claims 1—13 and 21—23. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37 C.F.R. §41.50(f). AFFIRMED 17 Copy with citationCopy as parenthetical citation