Appeal 2007-2127
Reexamination Control No. 90/006,621
Second, "[a]ssertions of technical facts in areas of esoteric technology must
always be supported by citation to some reference work recognized as
standard in the pertinent art . . . ." In re Ahlert, 424 F.2d 1088, 1091,
165 USPQ 418, 420 (CCPA 1970); accord In re Pardo, 684 F.2d 912, 917,
214 USPQ 673, 677 (CCPA 1982). The references cited, Exhibits 5 and 56,
mention "stacks," and saving data in a stack during a subroutine call, but not
that such stack is provided when the program is compiled. Exhibit 57 seems
to just mention stacks. Third, we do not think stacks are provided for when
the program "is compiled." The operating system puts information on a
stack when a subroutine call "is executed."
e. Arguments about 1991 application not considered
Patent Owner's arguments about the Board's decision in the 1991
application, Application 711,957, the Director's Brief on Appeal in the 1991
application, and Microsoft's amicus brief to the Federal Circuit in the 1991
application (Reply Br. 1, 4-7, 10, 13-15, and 17-21; Supp. Reply Br. 1-8) are
not considered, except for three points, since there are already more than
enough arguments to address in this case. First, the Board found no written
description support for "multithreading" in the 1991 application or in any of
the ancestor applications. This decision was affirmed on appeal in In re
Reiffin. Second, the fact that the Board noted that the interrupt embodiment
described in the "Detailed Description" is entitled to the benefit of the 1982
filing date does not imply that "multithreading" is supported by the
"Detailed Description," as evidenced by the written description rejection in
that case. Third, the reason the Board did not have to enter a new ground of
rejection over the OS/2 references because it was not necessary to do so in
92
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