Appeal No. 2006-1169
Application No. 10/005,728
If the present claims should protect all of the instruction
sets of all the known PENTIUM chips in existence at the time of
the invention, what is to happen to an independent inventor who
invents a new program, or sequence of instructions, different and
unobvious over the currently existing PENTIUM chips? If Intel
were to include such steps in a future version of the PENTIUM
chip, would the instant claims preclude that independent inventor
from his own invention because Intel has a patent claim that
seemingly excludes others from making, using, and selling any
instruction set which resides, or which may, in the future,
reside, in a chip with the PENTIUM label?
Thus, in our view, the use of the term PENTIUM fails to make
clear to the artisan what, exactly, is entailed by that term and
what, exactly, would be deemed to infringe a patent with such
claims.
At page 8 of the request for rehearing, appellants point to
page 9, line 14, through page 10, line 10 of the instant
specification, wherein it states, in part, that “In one
embodiment of the invention, the processor 105 supports the
PentiumŪ microprocessor instruction set and the packed data
instruction set 145.” At page 9 of the request for rehearing,
appellants contend that “…a competitor capable of making a
processor to execute the PENTIUM microprocessor instruction set
as well as another packed data instruction set, would understand
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