Appeal 2007-2127
Reexamination Control No. 90/006,621
view of the written description rejection. Since § 112 issues cannot be
raised in a reexamination based on "multithreading" limitations found in the
original patent claims, a prior art rejection is required in this case.
f. Effective date for "multithreading" is not 1982
Patent Owner argues that the date for determining the meaning of
"multithreading" is 1982 (Supp. Reply Br. 2-3). We disagree. Patent Owner
did not add the term "multithreading" until after the 1990 application was
filed and stated during the prosecution that the term had is ordinary meaning
in the art, which must be at the time the 1990 application was filed. The
amendments to the 1990 application do not get the benefit of the 1982 date.
ANTICIPATION
Krantz
Patent Owner argues that Krantz, OS/2: Features, Functions and
Applications is not prior art, but does not contest that Krantz anticipates if it
is prior art (Br. 75): "[T]he claims in reexamination are each entitled to the
September 28, 1982 priority date of the 1982 application. Therefore, the
OS/2 reference, published no earlier than 1988, is not prior art to the claims,
and so can not be the basis for the rejection."
We found that the '604 patent is not entitled to the benefit of filing
dates of its ancestor applications as to "threads" and "multithreading," so
Krantz is valid prior art. Accordingly, the rejection of claims 1-38, 44-47,
50, 57-60, 68-72, 75, and 80-83 under 35 U.S.C. § 102(b) as being
anticipated by Krantz is affirmed.
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