Appeal 2007-2127
Reexamination Control No. 90/006,621
411 F.2d 1333, 1336, 162 USPQ 157, 159 (CCPA 1969) (where Board has
conceded error in a prior decision, the broad countervailing pubic policy
considerations of granting valid patents preclude the application of
res judicata). The Board must be free to correct mistakes or omissions and
to consider previously unidentified patentability issues.
d. Context of all threads must be capable of being saved
Patent Owner argues that "the context of a thread need only be saved
if it is interrupted" (Br. 37) and "it is only necessary for one thread to be
interrupted" (Br. 39). Patent Owner argues that his declaration establishes
that the 8080 and Z80 microprocessors have context-saving capabilities built
in "with only routine contribution by the programmer who inserts push, pop
and return instructions at appropriate points in his software" (Br. 38).
As discussed in the claim interpretation section, the definition of
"multithreading" in the '604 patent requires preemption (interruption) of a
plurality of threads, not just one thread. As discussed supra, in this priority
section, the editor interrupt routine is not described to be interruptible.
Patent Owner's arguments about context saving with "routine contribution
by the programmer" go to what is possible, or perhaps to what would have
been obvious, but not to what is actually disclosed. The arguments that the
editor is interruptible and its context saved is without any factual support.
Patent Owner request that we take Official Notice that "Every
procedure and function in a high-level language is automatically provided
with a stack by the code generator when it is compiled" (Br. 41).
We do not make the requested finding of Official Notice. First, it is
not relevant because we do not rely on the thread not having its own stack.
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