In Re Martin G. Reiffin , 199 F. App'x 965 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is
not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-1063
(Serial No. 07/711,957)
IN RE MARTIN G. REIFFIN
__________________________
DECIDED: October 6, 2006
__________________________
Before MAYER, LINN, and PROST, Circuit Judges.
PER CURIAM.
Martin G. Reiffin appeals the decision of the United States Patent and Trademark
Office Board of Patent Appeals and Interferences, affirming the examiner’s rejections of
claims 22-24, 26, 33, 34, 38-55, and 57-77. Ex parte Reiffin, No. 04-1615 (Aug. 11,
2005). We affirm.
Reiffin filed U.S. Patent Application No. 07/711,957 in 1991, and only claims 22-
24, 26, 33, 34, 38-55, and 57-77 remain. The claimed invention recites a computer
system with a program having a plurality of concurrently executable threads. Only
claims 50-55 do not have the concurrent execution limitation, instead providing for
sequential processing of threads. Reiffin argues that the board’s entire decision is in
error, raising forty-seven numbered issues and several additional sub-issues, while
providing only cursory analysis of the alleged error in each issue. Although we
disapprove of such a “shotgun approach,” in light of Reiffin’s pro se status, we,
nevertheless, address his contentions to the extent necessary. See, e.g., Forshey v.
Principi, 284 F.3d 1335, 1357-58 (Fed. Cir. 2002) (en banc) (recognizing that a pro se
litigant's submissions to the court are to be held to “less stringent standards than formal
pleadings drafted by lawyers”) (citations omitted).
We review the board’s conclusions of law de novo and affirm its findings of fact if
they are supported by substantial evidence. In re Dial-A-Mattress Operating Corp., 240
F.3d 1341, 1344 (Fed. Cir. 2001). Because they are relevant to many of the issues on
appeal, we preliminarily address the board’s construction of “thread,” “multithreading,”
“concurrent execution,” and “sequential versus concurrent programs.” Claim
construction is a matter of law. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454-
55 (Fed. Cir. 1998) (en banc).
The board provided an extended definition of “thread,” and concluded that,
contrary to Reiffin’s contention, it was “more than just a series of instructions in a
program.” Ex parte Reiffin, No. 04-1615, slip op. at 62 (March 7, 2005) (“Initial
Decision”). Because (1) Reiffin averred to the board that its terms are used consistently
with their ordinary meaning in the art, (2) “thread” is not defined in the application’s
specification, (3) the board established the term’s meaning based on its review of the
specification and understandings in the art as demonstrated by an exhaustive review of
pertinent literature, and (4) Reiffin does not point to any specific error in the board’s
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rejection of his proposed construction, we find the board’s construction to be correct.
We similarly affirm its construction of “multithreading,” id. at 66, “concurrent execution,”
id. at 73, and “sequential versus concurrent programs,” id. at 73-76.
With respect to the merits, we first address the board’s rejection of claims 22-24,
33, 34, 39, 40, 43-46, 52-54, 57-60, and 62-71 under 35 U.S.C. § 112 enablement
grounds. Enablement is a question of law. United States v. Telectronics, Inc., 857 F.2d
778, 785 (Fed. Cir. 1988). The test “is whether one reasonably skilled in the art could
make or use the invention from the disclosures in the patent coupled with information
known in the art without undue experimentation.” Id. (citations omitted). These claims
all recite some form of concurrent lexical analysis, i.e., spell checking or grammar
checking as one types. The application, however, provides no description respecting
the implementation of the lexical analyzer limitation. Initial Decision at 105. Reiffin
admits that, despite Microsoft having developed multithreading in 1988 and expending
enormous programming skills and resources, it was not able to successfully implement
concurrent spell checking until 1995, or concurrent grammar checking until 1997. Id. at
107. We find that the board properly concluded that this demonstrated a general lack of
skill in the art in 1991 for implementing concurrent lexical analysis in a computer
program. Therefore, because Reiffin’s application is without any description as to how
to implement his lexical analyzer, the above claims necessarily require “undue
experimentation” in order for one of ordinary skill in the art to make or use them.
Next, the board rejected claims 22-24, 26, 33, 34, 38-49, 57-70, and 71-77 on
section 112 written description grounds. Because only claims 26, 38, 41, 42, 47-49, 61,
and 72-77 were not considered in the enablement analysis above, we need only
06-1063 3
consider these claims in our written description analysis. Compliance with the written
description requirement is a question of fact. Vas-Cath, Inc. v. Mahurkar, 935 F.2d
1555, 1563 (Fed. Cir. 1991). In order to satisfy it, the disclosure as originally filed must
“convey with reasonable clarity to those skilled in the art that . . . [Reiffin] was in
possession of the invention.” Id. at 1563-64 (emphasis in original). Because the “set of
editor instructions” and “set of compiler instructions” disclosed in the three programs
described by Reiffin’s application are not “threads,” the board properly found that those
disclosures are not multithread programs. Initial Decision at 86. Moreover, because
the programs are executed sequentially, e.g., certain operations are conducted under
“if/else” commands, they cannot be considered “concurrent programs” or indicative of
“concurrent execution of multiple threads.” Id. at 86-87. Therefore, despite the
occasional use of the term “multithreading” in Reiffin’s disclosure, it fails to demonstrate
possession of a program that concurrently executes multiple threads. Programs in
Reiffin’s earlier disclosures, incorporated by reference, may contain multiple threads,
but they are not executed concurrently, and therefore cannot satisfy the written
description requirement for a program that engages in “multithreading.” Id. at 87-88.
Because all of the claims at issue have a multithreading limitation, they were properly
rejected for lack of an adequate written description.
This leaves only claims 50, 51, and 55. The board affirmed the examiner’s
rejection of all three claims as anticipated by the 1980 De Jong reference. Anticipation
is a question of fact, In re Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991), as
is what prior art discloses, Para-Ordanance v. SGS Importers, 73 F.3d 1085, 1088 (Fed.
Cir. 1995). Reiffin does not challenge the board’s determination that the 1980 De Jong
06-1063 4
reference embodies the same disclosure as the 1982 De Jong reference. With respect
to Reiffin’s application, claim 50 requires: (1) a body of data; (2) a first set of instructions
executed before/after idle time intervals; (3) a second set of instructions executed
during idle time intervals; and (4) that the instruction sets execute effectively
simultaneously to process the body of data. It does not recite threads, i.e., the requisite
“process” is broader than a “thread,” nor does it require the two sets of instructions to be
in the same program. The board found, and substantial evidence supports, that De
Jong reads on claim 50 as follows: The first limitation is satisfied by the data input to the
computer by the keyboard and by the data in the ring buffer. The second limitation
reads on the interrupt service routine because the requisite “process” covers entering
and deleting characters from the buffer, and “brief spaced execution time intervals” read
on the times determined by De Jong’s clock cycles. The third limitation is satisfied by
the Morse code program and its method of execution in De Jong. Finally, the fourth
limitation merely describes what occurs in De Jong. Initial Decision at 129-30. Claims
51 and 55 similarly read on De Jong. Id. at 132-35. Because the above analysis
affirms the board’s rejection as to all claims, we need not reach its additional bases for
rejection or Reiffin’s other arguments.
06-1063 5