Ex Parte Watts et al

Board of Patent Appeals and Interferences

Jan 31, 2011

11123464 (B.P.A.I. Jan. 31, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LAVAUGHN F. WATTS JR.
and STEVEN J. WALLACE
____________

Appeal 2009-009202
Application 11/123,464
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 REHEARING 1

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 2009-009202
Application 11/123,464

2
This is a decision on Appellants’ Request for Rehearing (“Request”)
filed on November 19, 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 Appellants 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.

Appellants alleged 13 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 Appellants’ Brief. Thus, we find that,
where Appellants 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).
Appellants’ arguments (discussed in detail below) rely mainly upon
three propositions discussed with respect to alleged error No. 1. (Req. 5-7.)
We will address Appellants’ arguments with respect to alleged error No. 1.
Appeal 2009-009202
Application 11/123,464

3

Appellants contend that there is insufficient enablement in the Sheets
reference to justify the Board’s interpretation of Findings of Fact 1. (Req. 5-
7). First, we find Appellants’ argument to be untimely since the same
paragraph of Sheets, spanning columns 2-3 had been referenced by the
Examiner in the Final Rejection at page 3 and again in the Answer at page
12. Appellants failed to raise this issue for review with the Examiner in the
Brief and Appellants failed to file a Reply Brief to present the argument for
review.
Second, we find Appellants’ 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 the 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, Appellants’ argument concerning
Findings of Fact No. 2 focuses on a lack of enablement in Sheets concerning
that “at regular intervals” is “real-time.” (Req. 8.) Appellants’ arguments
are similar to those presented with respect to Finding of Fact 1 and
furthermore Appellants’ arguments directed to “real-time” are not
Appeal 2009-009202
Application 11/123,464

4
commensurate in scope with Appellants’ express claim language since this
express language is not found in the claim. (Id. at 8-10). Again, as
discussed above with respect to Finding of Fact 1, we find Appellants’
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.
With respect to alleged error No. 3, Appellants’ argument concerning
Findings of Fact No. 3 focuses on a lack of enablement in Sheets concerning
that “at regular intervals” is “real-time.” (Req. 10-13.) As discussed above
for the same three reasons, we find Appellants’ contentions unpersuasive of
error in our Decision. Appellants further opine concerning the other
embodiments of Sheets, and maintain that “Sheets could not obtain a patent
on this embodiment . . .” (Id. at 12-13.) We find Appellants’ arguments to
other embodiments irrelevant as to the prior art embodiment applied by the
Examiner in the anticipation rejection and does not identify any points
overlooked or misapprehended in our Decision.
With respect to alleged error No. 4, concerning Findings of Fact No.
4, Appellants argue that the Board’s claim interpretation of “work load
level” as any processing load or activity or load associated with a processor
“ignores or unfairly ignores or emasculates the meaning of the term ‘level’
in ‘work load level’” in claims 33 and 44. (Req. 14.) Appellants provide a
Appeal 2009-009202
Application 11/123,464

5
dictionary (Webster’s II New Riverside University Dictionary) definition
from 1984 supporting their understanding of the ordinary meaning of the
term “level” and select one meaning that would require a “relative ranking.”
(Id.) Wherein the Webster’s Seventh New Collegiate Dictionary (1963) at
page 485 provides a similar yet slightly broader interpretation of the same
term as “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
consistent with the [S]pecification.” In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted). If Appellants desired a
“relative ranking,” then the claim should expressly recite such a limitation or
the term should be defined in the Specification in such a manner. Appellants
Appeal 2009-009202
Application 11/123,464

6
do not identify any points overlooked or misapprehended in our Decision.
Appellants further identify pages 10, 11, and 18 of their Specification as
support for their interpretation (Req. 14), but we find no express definition
therein which shows error in our Decision.
With respect to alleged error No. 5, concerning Issue 1, Appellants
argue the same contentions advanced above with respect to it alleged error
No. 4, which we found unpersuasive of error in our Decision. (Req. 15-16.)
With respect to alleged error No. 6, concerning Issue 1, Appellants
argue that there is no step “of detecting” in any of the claims with respect to
page 14, lines 15-17 of the Decision. (Req. 17.) We agree with Appellants
and find that inclusion of the words “of detecting” is a typographical error
and should be deleted from that sentence. The sentence should read “we
compare the steps of the instant invention and the representative claims of
co-pending Application No. 11/123.440 (now US 7,392,416 B2).” We find
Appellants’ argument is directed to a mere typographical error and does not
identify any points overlooked or misapprehended in our Decision.
With respect to alleged error No. 7, concerning Issue 1, Appellants
argue the same contentions advanced above with respect to alleged error No.
4, which we found unpersuasive, and which does not identify any points
overlooked or misapprehended in our Decision. (Req. 17-20.) Appellants
further argue that the Board overlooked the limitation “AS the work load
level decreases”. (Req. 19.) As with Finding of Fact 1 above, Appellants
have not identified where this argument was specifically argued previously
Appeal 2009-009202
Application 11/123,464

7
such that it could be overlooked or misapprehended in our Decision.
Appellants additionally argue that the Board overlooked “comparing an
amount of detected activity with an amount of detected activity from a
previous detecting of activity associated with the processor.” (Id.) Again,
Appellants have not identified where this argument was specifically argued
previously to be overlooked or misapprehended in our Decision. Nor have
Appellants identified any discussion in the Summary of the Claimed
Invention, which identifies, emphasizes, or discusses these limitations so as
to form a basis for claim interpretation. Therefore, Appellants’ argument
does not identify any points overlooked or misapprehended in our Decision.
With respect to alleged error No. 8, concerning Issue 2, Appellants
argue the feature of “real-time power saving” which we found to not be an
express limitation. (Req. 20.) First, we find this express limitation is not
found in the claim language. Second, Appellants have not identified any
express definition or presented any evidence of equivalents of the terms, nor
presented any extrinsic evidence, and have not identified any points
overlooked or misapprehended in our Decision.
With respect to alleged error No. 9, concerning Issue 2, Appellants
argue that the Board committed error in its finding that Sheets teaches the
processing load can be determined by determining the activity on the data
bus and the address bus that is the current processing load for the processor.
(Req. 21-22.) As discussed above with respect to alleged error No. 3, we do
Appeal 2009-009202
Application 11/123,464

8
not find Appellants’ arguments persuasive, and Appellants’ do not identify
any points overlooked or misapprehended in our Decision.
With respect to alleged error No. 10, concerning Issue 2, Appellants
argue the Board’s finding that the two argued teachings in Sheets are
“directly tied” and cites to the Decision at page 16, lines 17-21. (Req. 22-
23.) We do not find the asserted text at this location and Appellants
argument does not “state with particularity the points believed to have been
misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1).
Furthermore, Appellants rely upon the arguments advanced with respect to
alleged error No. 3, which we did not find persuasive. (Id. at 23-26.)
With respect to alleged error No. 11, concerning Issue 2, Appellants
argue that the Board erred in finding that Sheets teaches the changes
(reductions) of power consumption are accomplished in INCREMENTAL
steps. (Req. 26-27.) Appellants rely upon extrinsic evidence from the
Webster’s dictionary to support their interpretation of this claim limitation.
Appellants contend that a fair reading of the term “incremental” requires that
there be “small positive or negative changes (reductions) of power
consumption.” (Id. at 26.) We gave this claim limitation a broad yet
reasonable interpretation in the Decision. (Dec. 17.) We disagree with
Appellants new interpretation and find that such an interpretation would
require us to read into the claim limitations not otherwise present. In the
entire span of known frequencies, the two frequencies in Sheets are deemed
“incremental” (an undefined term in Appellants’ Specification). We do not
Appeal 2009-009202
Application 11/123,464

9
find Appellants’ arguments persuasive, and Appellants fail to identify any
points overlooked or misapprehended in our Decision.
With respect to alleged errors Nos. 12 and 13, concerning Issues 3 and
4 (respectively), Appellants argue that the Board committed error by
ignoring all the words in claims 33 and 44 or emasculating terms within the
claims. (Req. 27-31.) Appellants reiterate similar arguments advanced with
respect to prior alleged errors concerning the claimed term “level” in “work
load level.” (Id. at 28, 30.) We further note that Appellants’ Summary of
the Claimed Subject Matter regarding the claimed “determining a work load
level associated with a processor” for independent claims 22, 33, and 44
refer broadly to pages 11-19 of Appellants’ Specification (App. Br. 2-3) and
gives little guidance to the Examiner or the Board with an appropriate
determination for claim interpretation. We find Appellants’ argument does
not identify any points overlooked or misapprehended in our Decision.

CONCLUSION
For the aforementioned reasons, we find that the Appellants’
arguments do not specifically identify any points misapprehended or
overlooked by the Board in its Decision.

Appeal 2009-009202
Application 11/123,464

10
DECISION
We grant the Request for Rehearing to the extent that it was
considered, but we decline to modify our Decision based upon Appellants’
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

llw

TEXAS INSTRUMENTS INCORPORATED
P.O. BOX 655474, M/S 3999
DALLAS, TX 75265