Appeal 2007-1247
Application 10/222,014
We find insufficient evidence in the record before us that the term
“hardware” as recited in claim 1 refers solely to “hardware logic configured
to perform functions without the use of software” (Reply Br. 7) as asserted
by Appellants. Appellants rely, for support of the argument, on paragraphs
11 and 28 of the specification. (Id.). The specification discloses, however, a
control loop “in hardware” (spec. 4), a “run-time optimization system
(RTOS) embedded into the hardware” (id. 5), and distributing “the different
aspects of the RTOS work to the mechanism, i.e., hardware or firmware,
best suited to handle the work.” (Id. 7). We do not find any limiting
definition for the word “hardware” in the specification’s description of the
embodiments. Nor has any extrinsic evidence been presented supporting the
contention of how one of ordinary skill in the art would have interpreted the
term “hardware” in claim 1.
Further, while instant claim 1 requires a “hardware portion” and a
“software portion,” the claim does not preclude the “hardware portion”
being aided by software in performing the associated functions. Nor, for
that matter, does the claim preclude the “software portion” being aided by
hardware.
Appellants do not contest the Examiner’s assertion that “software
must be run on some form of hardware” (Reply Br. 6), but instead argue that
one of ordinary skill in the art would understand that the hardware as recited
in claim 1 “perform[s] functions without the use of software.” (Id. 7).
However, in the absence of extrinsic support of this contention and upon
review of the record before us, we agree with the Examiner that it is
reasonable to conclude that, given that “software must be run on some form
of hardware,” one of ordinary skill in the art would have understood that the
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