Appeal 2007-2127
Reexamination Control No. 90/006,621
Programming (Sybex 1993); Duncan, Advanced OS/2 Programming;
Iacobucci, OS/2 Programmer's Guide; LaFore, Peter Norton's Inside OS/2;
Richter, Advanced Windows NT (Microsoft Press 1994); and Herbert Schildt,
Windows NT Programming Handbook (Osborne McGraw-Hill 1993).
14. The 1994 application, as filed, describes "multithreading" in the
abstract and the specification (now at col. 1, line 16 to col. 2, line 18 in the
'604 patent).
Analysis
1. Terms stated to have ordinary meanings in the art
None of the 1982, 1985, or 1990 applications, as filed, mention
"threads" or "multithreading" (Finding 1). Thus, these applications provide
no intrinsic evidence of the meaning of the terms as of their filing dates.
During the prosecution of the 1990 application, Patent Owner
gradually amended the specification and claims to recite "threads" and
"multithreading." These amendments are not part of the original disclosure
(Finding 2). Patent Owner consistently represented that the terms "threads"
and "multithreading" have their ordinary and customary meanings in the
computer art, citing to dictionaries and treatises (Findings 5-13). Thus,
Patent Owner expressly admitted that "threads" and "multithreading" have
their ordinary meaning in the art and that he was not acting as his own
lexicographer in providing special definitions of the terms. This is
consistent with the rule that the meaning of terms is determined as of the
filing date, see Phillips v. AWH, 415 F.3d at 1313, 75 USPQ2d at 1326 ("the
ordinary and customary meaning of a claim term is the meaning that the
term would have to a person of ordinary skill in the art in question at the
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