Appeal 2007-2127
Reexamination Control No. 90/006,621
processing and modification of the same body of data by at least two
concurrently executing instruction threads constituting a single program"
(Exhibit 52, Appeal Brief, page 34) (Br. 30).
(6) A Board decision on appeal in the 1994 application characterized
the claims as "a method and apparatus for preeemptive multithreaded
execution of a plurality of instruction threads located within the same
multithreaded software program in a general-purpose computer system"
(Exhibit 53, page 2) and reversed the prior art rejection (Br. 30). "Thus, the
Patent Office, including the Board of Patent Appeals and Interferences on
two separate occasions, has specifically considered and rejected the
fundamental priority date issue raised by the Examiner." (Br. 30.) It is
argued that the USPTO is bound by collateral estoppel from raising the
priority issue by the Supreme Court's decision in Commissioner of Internal
Revenue v. Sunnen, 333 U.S. 591, 77 USPQ 29 (1948) (Br. 24).
Decisions of an examiner have no judicial effect and cannot constitute
collateral estoppel. Thus, the facts that an examiner gave the '604 patent the
benefit of the 1982 filing date, allowed the Patent Owner to state that the
'603 and '604 patents were continuations of the 1982 application, and
allowed claims having the terms "multithreading" in the '603 and '604
patents are not binding in this appeal.
The statements that the '603 and '604 patents have an effective filing
date of 1982 means only that they are entitled to that date as to commonly
disclosed subject matter, not for everything. See Transco v. Performance
Contracting, 38 F.3d at 556, 32 USPQ2d at 1080 ("[T]he bottom line is that,
no matter what term is used to describe a continuing application, that
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