Ex Parte Watts

Board of Patent Appeals and Interferences

Jan 31, 2011

11137032 (B.P.A.I. Jan. 31, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LAVAUGHN WATTS JR.
____________

Appeal 2009-008260
Application 11/137,032
Technology Center 2100
____________

Before JOSEPH L. DIXON, JOHN A. JEFFERY, and JAMES R. HUGHES,
Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-008260
Application 11/137,032

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This is a decision on Appellant’s Request for Rehearing (“Request”),
filed on November 22, 2010, of our Decision mailed on September 20, 2010.
We have jurisdiction under 35 U.S.C. § 6(b).
We grant the Request for Rehearing, but decline to modify our
Decision.
At the outset, we note that Appellant did not file a Reply Brief.
We also note that 37 C.F.R. § 41.52(a)(1) states:
The request for rehearing must state with particularity the
points believed to have been misapprehended or overlooked by
the Board. Arguments not raised in the briefs before the Board
and evidence not previously relied upon in the brief and any
reply brief(s) are not permitted in the request for rehearing
except as permitted by paragraphs (a)(2) and (a)(3) of this
section.

Appellant alleged 8 separate errors in the Findings of Facts and Issues
sections of our Decision. (Req. 2-3.) In many instances these could have
and should have been raised in Appellant’s Brief. Thus, we find that, where
Appellant could have raised but chose not to raise these arguments, these
arguments are untimely, and do not specifically identify any points
misapprehended or overlooked by the Board in its Decision. 37 C.F.R. §
41.52(a)(1).

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Appellant’s arguments (discussed in detail below) rely mainly upon
three propositions discussed with respect to alleged error No. 1. We will
address Appellant’s arguments with respect to cause argument No. 1.

Appellant contend that there is insufficient enablement in the Sheets
reference to justify the Board’s interpretation of Findings of Fact 3. (Req. 3-
6.) First, we find Appellant’s argument to be untimely since the same
paragraph of Sheets, spanning columns 2-3 had been referenced by the
Examiner in the Non-Final Rejection at page 7 and again in the Answer at
page 5. Appellant failed to raise this issue for review with the Examiner in
the Brief and Appellant failed to file a Reply Brief to present the argument
for review.
Second, we find Appellant’s argument was not presented for review
by the Board in its Decision. Therefore, this new argument does not “state
with particularity the points believed to have been misapprehended or
overlooked by the Board,” as required in a Request for Rehearing. 37
C.F.R. § 41.52(a)(1). A “point” cannot be misapprehended or overlooked if
it was not raised for review.
Third, Appellant has presented no evidence to show the asserted lack
of enablement of Sheets for skilled artisans. Therefore, we disagree with
Appellant’s contention on enablement.
With respect to alleged error No. 2, Appellant’s argument concerning
Findings of Fact 4 focuses on a lack of enablement in Sheets concerning
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“real-time frequency computing.” (Req. 6.) Appellant’s further arguments
are similar to those presented with respect to alleged error No. 1 and
furthermore Appellant’s arguments directed to “real-time” are not
commensurate in scope with Appellant’s express claim language since this
express language is not found in the claim. (Id. at 6-8.) As discussed above
with respect to alleged error No. 1, we find Appellant’s argument: (1) to be
untimely; (2) is a new argument that does not “state with particularity the
points believed to have been misapprehended or overlooked by the Board,”
as required in a Request for Rehearing; and (3) does not persuade us of a
lack of enablement for the reasons set forth with respect to Finding of Fact 1
(alleged error no. 1).
With respect to alleged error No. 3, Appellant’s argument concerning
Findings of Fact 5 focuses on a lack of enablement in Sheets concerning “at
regular intervals” is “real-time.” (Req. 9-12.) As discussed above for the
same three reasons, we find Appellant’s contentions unpersuasive of error in
our Decision. Appellant further opines concerning the other embodiments of
Sheets, and maintains that “Sheets could not obtain a patent on this
embodiment . . . .” (Id. at 11.) We find Appellant’s arguments to other
embodiments irrelevant as to the prior art embodiment applied by the
Examiner in the rejection and does not identify any points overlooked or
misapprehended in our Decision.
With respect to alleged error No. 4, concerning Issue 2, Appellant
argues that the Board’s claim interpretation of “work load level” in the
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obviousness type double patenting rejection as any processing load or
activity or load associated with a processor “ignores or unfairly emasculates
the meaning of the term ‘level’ in ‘work load level’” in claim 22. (Req. 12-
14.) Appellant provides a dictionary (Webster’s II New Riverside
University Dictionary (1984)) definition supporting his understanding of the
ordinary meaning of “level,” and Appellant selects one meaning that would
require a “relative ranking.” (Id. at 13.) Alternatively, we find the
Webster’s Seventh New Collegiate Dictionary (1963) at page 485 provides a
similar yet slightly broader interpretation of the same interpretation “9: the
magnitude of a quantity considered in relation to an arbitrary reference
value.”

Webster’s Seventh New Collegiate Dictionary (1963) at page 485
(“Webster’s 7th”).
Here, the Webster’s 7th definition identifies that only a single
arbitrary reference value is needed, and not a “relative ranking.” Therefore,
the arbitrary reference value may be zero and any value then ranked there
against would be a magnitude equal to the ranking. Moreover, we do not
construe the claim to require such a narrow interpretation of a workload
level – we provide claim terms with their “broadest reasonable interpretation
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consistent with the [S]pecification.” In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). If Appellant desires a
“relative ranking,” then the claim should expressly recite such a limitation or
be defined in the Specification in such a manner. Appellant does not identify
any points overlooked or misapprehended in our Decision. Appellant further
identify pages 10, 11, and 18 of their Specification (Req. 13), and we find no
express definition therein which shows error in our Decision.
With respect to alleged error No. 5, concerning Issue 4, Appellant
argues the feature of “real-time power saving” which we found not to be an
express limitation. (Req. 14.) First, we find this express limitation is not
found in the claim language. Second, Appellant has not previously
identified any express definition or presented any evidence of equivalents of
the terms, nor presented any extrinsic evidence. Therefore, Appellant’s
argument does not identify any points overlooked or misapprehended in our
Decision.
With respect to alleged error No. 6, concerning Issue 4, Appellant
argues that the Board committed error in its finding that Sheets teaches the
processing load can be the activity on the data bus and the address bus that is
the current processing load for the processor. (Req. 14-17.) Appellant
speculates as to the other embodiments in Sheets and relies upon new
arguments which could have been presented earlier concerning enablement.
As discussed above with respect to alleged error No. 3, we do not find
Appellant’s arguments persuasive, and Appellant does not identify any
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points overlooked or misapprehended in our Decision. Appellant provides
further discussion regarding the law of obviousness (Req. 16-17), which also
does not identify any points overlooked or misapprehended in our Decision.
With respect to alleged error No. 7, concerning Issue 4, Appellant
argues that the Board erred in finding that Sheets teaches that changes
(reductions) of power consumption are accomplished in INCREMENTAL
steps. (Req. 17-18.) Appellant supplies extrinsic evidence in the form of
Webster’s II New Riverside University Dictionary (1984) to support his
interpretation of this claim limitation. (Id. at 18.) Appellant contends that a
fair reading of the term “incremental” requires that “there be small positive
or negative changes (reductions) of power consumption.” (Id.) We gave
this claim limitation a broad yet reasonable interpretation in the Decision.
(Dec. 21-22.) We disagree with Appellant’s new interpretation and find
that such an interpretation would require us to read into the claim a
limitation not otherwise present. In the entire span of known frequencies,
the two frequencies in Sheets are deemed “incremental” (an undefined term
in Appellant’s Specification). We do not find Appellant’s arguments
persuasive, and Appellant fails to identify any points overlooked or
misapprehended in our Decision.
With respect to alleged error No. 8, concerning Issue 5, Appellant
argues that the Board committed error by ignoring all the words in claims 35
and 44 or emasculating the terms within the claims such that they have no
meaning. (Req. 18-20.) Appellant reiterates similar arguments advanced
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with respect to prior alleged errors concerning the claimed term “level” in
“work load level.” (Id. at 18.) We further note that Appellant’s Summary of
the Claimed Subject Matter regarding the claimed “determining temperature
and a work load level associated with a processor” for independent claims
24, 35, and 44 refer broadly to pages 12-21 of Appellant’s Specification
(App. Br. 2-3) and gives little guidance to the Examiner or the Board with an
appropriate determination for claim interpretation. We find Appellant’s
argument does not identify any points overlooked or misapprehended in our
Decision.

CONCLUSION
For the aforementioned reasons, we find that the Appellant’s
arguments do not specifically identify any points misapprehended or
overlooked by the Board in its Decision.
DECISION
We grant the Request for Rehearing to the extent that it was
considered, but we decline to modify our Decision based upon Appellant’s
arguments.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

REHEARING DENIED

Appeal 2009-008260
Application 11/137,032

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