NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

06-1063 (Serial No. 07/711,957)

IN RE MARTIN G. REIFFIN

__________ ________________ DECIDED: October 6, 2006

__________________________ Before MAYER, LINN, and PROST, Circuit Judges

. PER CURIAM. Martin G. Reiffin appeals the decision of the United States Patent and Trademark Office Board of Patent Appeal s and Interferences, affirming t he examiner’s rejections of claims 22-24, 26, 33, 34, 38-55, and 57-77. Ex parte Reiffin , No. 04-1615 (Aug. 11, 2005). We affirm

. Reiffin filed U.S. Patent Applicati on No. 07/711,957 in 1991, and only claims 22- 24, 26, 33, 34, 38-55, and 57-77 remain. T he claimed invention recites a computer system with a program having a plurality of concurrently executable threads. Only claims 50-55 do not have the concurrent ex ecution limitation, instead providing forsequential processing of threads. Reiffin argues that t he board’s entire decision is in error, raising forty-seven numbered issues and sev e ral additional s ub-is sues, while providing only cursory analysis of the al leged error in each issue. Alt hough we disapprove of such a “shotgun approach,” in light of Reiffin’s pro se status, we, nevertheless, address his contenti ons to the extent necessary. See, e.g. , Forshey v. Princip i , 284 F.3d 1335, 1357-58 (F ed. Cir. 2002) (en banc) (recogniz i ng that a pro se litigant's submissions t o the court are to be held to “less stringent s t andards than formal pleadings drafted by lawyers”) (citations omitted). We review the board’s conclusions of law de novo and affirm its fi ndings of fact if they are supported by s ubstantial evidenc e. In re Dial-A-Mattress Operating Corp. , 240 F.3d 1341, 1344 (Fed. Cir. 2001) . Becaus e they are r e levant to many of the issues on appeal, we preliminar ily addre ss the board’s construction of “thread,” “multithreading,” “concurrent execution,” and “sequential ve rsus concurrent programs.” Claim construction is a matter of law. Cybor Corp. v. FAS Techs., Inc. , 138 F.3d 1448, 1454- 55 (Fed. Cir. 1998) (en banc). The board provided an ex tended definition of “thread,” and concluded that, contrary to Reiffin’s c ontention, it was “more than just a series of instructions in a program.” Ex parte Reiffin , No. 04-1615, slip op. at 62 (March 7, 2005) (“ Initial Decis i on ”). Because ( 1 ) Reiffin averred to the boar d that its terms are used c o nsistently with their ordinary meaning in the art, (2) “thread” i s not defined in the application’s specification, (3) the board es tablished the term’s meaning based on its review of the specification and understandings in the art as demonstrated by an exhaustive review of pertinent lit erature, and (4) Reiffin does not poi nt to any specific error in the board’s

06-1063 2rejection of his proposed construction, we fi nd the board’s construction to be correct. We similarly affirm its construction of “multithreading,” id. at 66, “concurrent exec ution, ” id. at 73, and “sequential vers us concurrent programs,” id. at 73-76. With respect to the merits, we first addr ess the board’s rejection of claims 22-24, 33, 34, 39, 40, 43-46, 52- 54, 57-60, and 62-71 under 35 U.S.C. § 112 enablement grounds. Enablement is a question of law. United States v. Telec t ronics, Inc. , 857 F.2d 778, 785 (Fed. Cir. 1988). The test “is whet her one reasonably skilled in the art could make or use the invention from the disclos ures in the patent coupled with information known in the art without undue experimentation.” Id. (citations omitted). These claim s all rec i te s o me form of concurrent lexic a l analys is, i.e., spell checking or grammar checking as one types. The application, however, pr ovi des no description respecting the implementation of the le xical analyzer limitation. Initial Dec i sion at 10 5. Reiffin admits that, despite Microsoft having dev eloped multit hreading in 1988 and expending enormous programming skills and resources, it was not able to s u ccessfully implement concurrent spell check i ng unt il 1995, or concurrent gr ammar checking until 1997. Id. at 107. We find that the board properly conc luded that this demonstrated a general lack of skill in the art in 1991 for implementing conc urrent lexical a n a lysis in a computer program. Therefore, because Re iffin’s application is without any description as to how to implem ent his lexic a l analy z er, the above claims nec essarily require “undue

exp e rimentation” in order fo r one of ordinary skill in the ar t to make or use them. Next, the board rejected claims 22-24, 26, 33, 34, 38-49, 57-70, and 71-77 on section 112 written description grounds. Because only claims 26, 38, 41, 42, 47-49, 61, and 72-77 were not considered in the e nablement analys is above, we need onl y

06-1063 3consider these claims in our written descr iption analysis. Compliance with the written description requirement is a question of fact. Vas-Cath, Inc. v. Mahurkar , 935 F.2d 1555, 1563 (Fed. Cir. 1991). In order to satisfy it, the disclos ure as originally filed mus t “convey with reasonable clarity to those skill ed in the art that . . . [Reiffin] was in possession of the invention .” Id. at 1563-64 (emphasis in original). Because the “set of editor instructions” and “set of compiler ins t ructions” disclosed in the three programs described by Reiffin’s applicati on are not “threads,” the board properly found that those disclos ures are not mu ltithread programs. Initial Decision at 86. Moreover, because the programs are executed seq uentially, e.g., certain operat ions are conducted under “if/else” commands, they cannot be considered “concurrent programs” or indicative of “concurrent execution of multiple threads.” Id. at 86-87. Therefore, despite the occasional use of the term “mul tithreading” in Reiffin’s disclos ure, it fails to demonstrate possession of a program that concurrently executes multiple th reads. Programs in Reiffin’s earlier disc losures, incorporated by reference, may contain mult iple threads, but they are not executed c oncurrently, and therefore cannot sa tisfy the written description requirement for a program that engages in “multithreading.” Id. at 87-88. Because all of the claims at issue have a mu ltithreading limitatio n, they were properly rejected for lack of an adequat e written description. This leaves only claims 50, 51, and 55. The boar d affirmed the examiner’s rejection of all three claims as anticipated by the 1980 De Jong reference. A n ticipation is a question of fact, In re Baxter Travenol Labs. , 952 F.2d 388, 390 (Fed. Cir. 1991), as is what prior art discloses, Para-Ordanance v. SGS Importers , 73 F.3d 1085, 1088 (Fed. Cir. 1995). Reiffin does not challenge the b oard’s determination t hat the 1980 De Jong

06-1063 4reference embodies the same disclosure as t he 1982 De Jong reference. With respect to Reiffin’s application, claim 50 r equires: (1) a body of data; (2 ) a first set of instructions

exec uted before/after idle time intervals; (3) a second set of instructions execut ed during idle time intervals; and (4) that the instruction set s execute effectively simultaneously to process the body of data. It does not recite threads, i.e., the requisit e “process” is broader than a “thread,” nor does it r equire the two sets of instructions to be in the same program. The board found, and substantial ev idence supports, that De Jong reads on claim 50 as follows: The first limit ation is satisfied by the data input to the computer by the keyboard and by the data in the ring buffer. The second limitation reads on the interrupt servic e r outine bec ause the requis i te “process” cov e rs entering and deleting characters from t he buffer, and “brief spaced exec ution time intervals” read on the times determined by De Jong’s c l oc k cycles . The third limitation is satisfied by the Morse code program and its method of execution in De Jong. Finally, the fourth limitation merely des cribes wh at occurs in De Jong. I n itial Decis i on at 129- 30. Claims 51 and 55 similarly read on De Jong. Id. at 132-35. Becaus e the abov e analys i s affirms the board’s rejection as t o all claims, we need not reach it s additional bases for rejection or Reiffin’s other arguments.

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