Friday, May 6, 2011

BPAI criticizes Applicant's claim term definition because the definition gave examples

Takeaway: The Applicant in Ex parte Brunner offered evidence of the meaning of "graphics processing unit," in the form of an IEEE article "GPU Computing." The BPAI found that the article did not provide a definition of the term, and instead described examples of GPUs. The Board adopted the Examiner's broader interpretation of GPU: "any processing unit that carries out graphical operations, such as outputting display data to a display device."

Details:

Ex parte Brunner
Appeal 2009006904; Appl. No. 10/877,358; Tech. Center 2600
Decided February 14, 2011

A representative claim on appeal read:

1. A method to generate a display-wide visual effect, comprising:
     copying an image buffer’s contents into a second buffer;
     filtering the second buffer’s contents back into the image buffer using a graphics processing unit to generate a specified visual effect, wherein the image buffer is associated with a system frame buffer; and
     compositing an application-specific window buffer into the image buffer, wherein the act of compositing is performed by the graphics processing unit after the act of filtering.

During prosecution, the Examiner took the position that "any processing unit that carries out graphical operations, such as outputting display data to a display device, is a graphic processing unit." The Examiner used this interpretation in an obviousness rejection, asserting that "because the at least one programmable processor in Hamburg is described as outputting data to at least one output device (such as the described LCD screen), the at least one programmable processor described in Hamburg is considered a graphics processing unit."

The Applicant contested this interpretation, and submitted an IEEE article titled "GPU Computing" as evidence of the meaning of "graphic processing unit" to a POSITA. The Applicant referred to this article in the Appeal Brief, arguing:
As one of ordinary skill in the art would recognize, the use of a graphics processing unit (GPU) entails a significantly different process than using a system's central processing unit and providing for efficient use of display resources. "[T]he architecture and programming model of the GPU are maredly different than most other commodity single-chip processors." (Owens et al., GPU COMPUTING ...; Evidence Appendix.) "The input to the GPU is ... triangles ... [each] triangle generates a primitive called a "fragment" at each screen-space pixel location that it covers. Because many triangles may overlap at any pixel locations, each pixel's color value may be computed [by the GPU] from several fragments." (Id.) In contrast, a central processing unit is driven by standard programming commands and process a single pixel at a time. Thus, the use of a dedicated graphics processing unit as claimed is not an insignificant difference between the cited art and the claimed invention.

The Examiner elaborated on his position in the Answer:
[T]he Applicant's claims don't limit the disclosed graphics processing unit to the graphics processing unit described by Owens et al. The claimed graphics processing unit is only limited to a graphics processing unit that [functional language of the claim.]

The Examiner also pointed to a portion of Hamburg that taught:
The invention can be implemented advantageously in one or more computer programs that are executable on a programmable system including at least one programmable processor ... Suitable processors include, by way of example, both general and special purpose microprocessors.

The BPAI found fault with the Applicant's interpretation of "graphics processing unit":
Appellants have not demonstrated error in the Examiner’s conclusion that the recited “graphics processing unit” is broad enough to read on Hamburg’s “programmable processor.” The reason is that Owens describes examples of GPUs without offering what can be accurately characterized as a broadest reasonable definition of that term.6 Furthermore, Appellants’ reliance on Owens’ discussion of “triangles” and the “fragments” generated thereby is misplaced in view of Owens’ description of triangles as “typical” rather than as essential: “The input to the input to the GPU is a list of
geometric primitives, typically triangles, . .” (emphasis added). Owens at 880, 2d col., 1st para. under heading “A. The Graphics Pipeline.” 

The Board found that the Applicant did not demonstrate error in the Examiner's interpretation, then used the Examiner's interpretation to conclude that Hamburg did disclose a graphics processing unit. The Board affirmed the obviousness rejection.

My two cents: The Applicant was smart to zero in on the real issue here: the meaning of GPU. And to hit the issue head on by introducing evidence.

Unfortunately for this Applicant, looks like this Board wanted a true definition, where the article was instead a discussion of GPUs. I think the Board made a mistake by not looking at the article as a whole and what it said about how POSITAs interpret "graphics processing unit." To me, the article as a whole clearly taught that GPU means something other than a processor that carried out graphics operations, by explaining how GPUs are different than regular microprocessors. The Applicant could have done a better job of explaining this – and probably would have had he known the Board was going to focus on this.

I haven't read many BPAI opinions dealing with the use of technical articles rather than dictionary definitions to argue meaning of a claim term to a POSITA. So I'm not sure how common this outcome is. My sense is that a true definition from a dictionary is better.

I'm disappointed the Board didn't recognize that the Examiner's interpretation was ridiculously broad. Yeah, okay, maybe the Applicant didn't have the best argument, and it's true that a GPU isn't limited to triangle primitives. But the meaning of GPU isn't as broad as a processor that carries out graphics operations. My PC in 1990 "carried out graphics operations" in order to put graphics on the screen, and it didn't have a GPU.

Maybe the Applicant was dead in the water here anyway, thanks to the offhand statement in the reference that "[s]uitable processors include, by way of example, both general and special purpose microprocessors." A graphics processing unit is certainly a special purpose microprocessor, so this  blanket statement in the reference may amount to a teaching of the claimed element.

Looks like the Applicant got away with a procedural error: as far as I could tell, the GPU Computing article was submitted for the first time in the Evidence Appendix of the Appeal Brief.

Finally, I note that decision is not as big a travesty as the Board's opinion in Ex parte Giacalone, There, the Board found that because "digital signal processing" meant manipulating images or other real-world signals, a video processor was a DSP because it processed images. (I posted long ago about Giacalone; read about it here.)

18 comments:

  1. You're right, Karen. The Board missed the ball on this one. Anyone who knows anything about GPUs (and video games) knows that GPUs aren't merely units that output display data. A simple wire "outputs display data" but is not a GPU.

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  2. Seems like the right result to me. All the claimed GPU does is process graphics. The examiner interpreted it accordingly. If the applicant wanted a narrower interpretation, they should have written a narrower claim.

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  3. >All the claimed GPU does is process graphics.
    >The examiner interpreted it accordingly.

    Do you agree the term has a specific meaning to a POSITA? If so, sounds like you're saying it's ok to ignore the more specialized meaning. How can you say that ignoring this meaning is a reasonable interpretation?

    Now, if you want to say that it's obvious to substitute a GPU for a generic processor, that's different. But that wasn't what the rejection was based on.

    >Seems like the right result to me.

    May have been the right result. Because the evidence was insufficient, or because substitution was obvious, or any number of reasons I haven't considered.

    Doesn't change my opinion that the Examiner's interpretation was unreasonable. There is much to learn from cases that reach the right result for the wrong reason.

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  4. This is an excellent example of why 145 actions are an essential safeguard for the integrity of the examination process. I would be inclined to include an appendix of explicit definitions with a request for reconsideration, and then (assuming they refuse to consider it, and if budget permits) file a 145 to get the excluded evidence considered.

    Not a proud day for the Board. Maybe the new Chief Judge will help change things.

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  5. There should have been no need for evidence in this case. The difference between something that "processes" and something that merely "outputs" is the difference between a gut and an anus.

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  6. Here, the Applicant provide extrinsic evidence that establishes that the term GPU has an art-recognized specific meaning that would distinguish from a normal processor that can also have some "graphical" functions.

    The Examiner, on the other hand, employs the MSU principle while providing no evidence to support the Examiner's conclusion.

    Where does the BPAI come down? Of course, the BPAI comes down on the side of the Examiner. Feces weigh more than substantial evidence so when all the evidence is weighed, the MSU principle prevails.

    "All the claimed GPU does is process graphics. The examiner interpreted it accordingly. If the applicant wanted a narrower interpretation, they should have written a narrower claim."
    Hello??? That is exactly what Applicants did. They used a term-of-art that even those unskilled in the art should know. If you've ever bought a computer online (e.g., from Dell, HP, etc.) you'll be given your choice of GPU (i.e., on the graphics card) and a separate choice for a normal processor.

    The problem with claim constructions at the BPAI (if you are even lucky enough to have the Examiner give you once) is that the BPAI assumes that the Examiner's claim construction is reasonable. Often-times … scratch that … almost all of the times, the Examiner produces no evidence whatsoever as to the reasonableness of the Examiner's claim construction.

    Anyway, this is just a classic example of what Examiners do to reject and application and the BPAI does to affirm – just ignore the claim limitations under the rubric of broadest reasonable interpretation.

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  7. I'm curious as to what language would have been specific enough. The claim said graphics processing unit. The Applicant wants this to be referring to a specific device called a graphics processing unit and called out a graphics processing unit by name in the claim. I wonder if there is even a way that the Applicant could have described the graphics processing unit to satisfy this Examiner that the broadest reasonable interpretation consistent with the specification was a graphics processing unit.

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  8. "My PC in 1990 "carried out graphics operations" in order to put graphics on the screen, and it didn't have a GPU."

    It probably did

    GPU is a loaded industry term to sell vidya cards, where its just a dedicated processor. Even among GPUs theres differences in architecture and now GPUS even do (only) physics calculations. Of course "normal" processors can do graphics processing

    Whether the reference processor processes or outputs is another debate, but if it processes graphics, its a GPU

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  9. "if it processes graphics, its a GPU"

    Not to those skilled in the art.

    Just because you can put a shoe on your head doesn't make it a hat.

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  10. >if it processes graphics, its a GPU

    Why do you guys insist on ignoring the evidence that says the term GPU is understood by a POSITA as something different than "a CPU that processes graphics"?

    At least be honest and say "I'm ignoring what the term means to a POSITA."

    CPU ≠ GPU ≠ DSP ≠ network processor. Each of these terms means something different to a POSITA. Each of those terms carries some built-in baggage about the features and architecture of the processor, more than the functions it performs as suggested by the labels "graphics" "digital signal" and "network."

    Whether or not GPU is a patentable distinction over CPU in the claims at issue is a different debate.

    >"normal" processors can do graphics processing

    Irrelevant. The claim didn't say simply "processor" followed by functional language about graphics.

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  11. "The Board adopted the Examiner's broader interpretation of GPU: "any processing unit that carries out graphical operations, such as outputting display data to a display device.""

    An exceedingly good definition.

    "A simple wire "outputs display data" but is not a GPU. "

    Is a simple wire a processing unit? No? Then it doesn't fit the definition.

    ""because the at least one programmable processor in Hamburg is described as outputting data to at least one output device (such as the described LCD screen), the at least one programmable processor described in Hamburg is considered a graphics processing unit." "

    I don't know if that is the proper application of the definition though. I mean, is the information that the programmable processor sending to the LCD screen graphics information? Or is it information about how to blow up?

    "Do you agree the term has a specific meaning to a POSITA? "

    That depends, is your POSITA a run of the mill softwaretard or a device engineer? If the former, then probably so, if the later then probably not, that is, if you think the definition that the later would adopt is different than that which the examiner provided.

    "Thus, the use of a dedicated graphics processing unit as claimed is not an insignificant difference between the cited art and the claimed invention."

    Well if you wanted to claim a dedicated GPU then why didn't u claim a dedicated GPU? Oh, you don't have WD for that? OH, THAT MIGHT BE WHY.

    Bottom line, BPAI got this right, and the applicant can try citing some real evidence if they want to try to make their non-point.






    "you'll be given your choice of GPU (i.e., on the graphics card) and a separate choice for a normal processor."

    Which can coincidentally be used as a GPU... and in fact appears to be being used as one in the reference.

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  12. "Why do you guys insist on ignoring the evidence that says the term GPU is understood by a POSITA as something different than "a CPU that processes graphics"? "

    Because it doesn't give us what that "something different" is? We're not ignoring the evidence Karen, we're TAKING IT INTO ACCOUNT. Lulz, Karen, this is why device people will run circles around you software know-nothings all day long, all day strong. Count on it. Just be glad we've created special divisions to cater to your knowing-nothing here at the PTO to better accomodate your knowing-nothing.

    "At least be honest and say "I'm ignoring what the term means to a POSITA.""

    Tell you what know-nothing, tell us what POSITA thinks it means in this context and if it is reasonable then I will consider conceding the entire case to you. Just as the examiner probably would have in this case if the attorneytard hadn't brought bs to him instead of something of substance.

    "CPU ≠ GPU ≠ DSP ≠ network processor. Each of these terms means something different to a POSITA. Each of those terms carries some built-in baggage about the features and architecture of the processor, more than the functions it performs as suggested by the labels "graphics" "digital signal" and "network.""

    WELL THEN TELL US WHAT IT IS FOR GOD'S SAKE KNOW-NOTHING.

    "The claim didn't say simply "processor" followed by functional language about graphics. "

    No, they used a word defined functionally to POSITAs who know wtf they're talking about. Just for the record Karen, do tell us what would happen to this claim if, tomorrow, I invented a totally new GPU that processed graphics data in a totally new way compared to the old school ways, and my new GPU architecture blows all old GPU architectures out of the water. Would that be a GPU under whatever wack arse definition for GPU you would impose in this case? Yes, or no? Do you think the patentee would like it to? Yes, or no?

    Use your brain when interpreting things please.

    "The Applicant could have done a better job of explaining this – and probably would have had he known the Board was going to focus on this.
    "

    Well, if he wasn't a softwaretard then he probably would have known this because anyone with even a cursory command of prosecution would. But we can see pretty clearly from the prosecution that there is a 99.9% chance that he is just another softwaretard who has had their brains turned to mush from all the conflating of method step limitations with functional limitations and structural limitations, and attempting to claim abstract ideas in such a way as to conceal that is what they are trying to claim. I mean, can you blame these guys? Not really, once you start down that path you may as well check your rational mind at the door.

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  13. >Well if you wanted to claim a dedicated GPU
    >then why didn't u claim a dedicated GPU? Oh,
    >you don't have WD for that?

    So you're interpreting claim language based on why you THINK a patent prosecutor DIDN'T use a particular term? What does that have to do with anything?

    If you're right that the applicant's definition is inconsistent with the specification, then maybe the applicant did open up a can of worms for WD. Maybe if the applicant wins at the board the litigators can get the patent on WD. But why does that affect claim interpretation? Leave the WD issue for the litigators.

    I don't see the distinction as dedicated vs. not dedicated. I see the distinction as a processor architecture tailored for graphics.

    >the applicant can try citing some real
    >evidence if they want to try to make their >non-point.

    What's wrong with the evidence used at appeal? You think only a definition from a dictionary is good enough?

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  14. "BPAI got this right, and the applicant can try citing some real evidence if they want to try to make their non-point."

    Examiner presents claim construction based upon no evidence.
    Applicant presents claim construction based upon evidence.
    BPAI goes with Examiner. Apparently, no evidence = real evidence.

    Honestly, this sounds about right when it comes to the USPTO.

    Intellectual dishonesty is the phrase the comes to mind.

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  15. "But we can see pretty clearly from the prosecution that there is a 99.9% chance that he is just another softwaretard who has had their brains turned to mush from all the conflating of method step limitations with functional limitations and structural limitations, and attempting to claim abstract ideas in such a way as to conceal that is what they are trying to claim. I mean, can you blame these guys? Not really, once you start down that path you may as well check your rational mind at the door."

    6 = diarrhea of the brain

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  16. FYI

    http://en.wikipedia.org/wiki/Graphics_processing_unit

    and for those looking for a visual demonstration:

    http://www.nvidia.com/object/nvision08_gpu_v_cpu.html

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  17. I'm curious... Did the specification of the application include language that broadened the meaning of "graphics processing unit"?

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  18. The fundamental problem with this decision is that, once again, the BPAI talks about one of ordinary skill would know without ever explicitly determining the actual level of ordinary skill. The blame rests with the Applicant for not contesting the Examiner's failure to explicitly determine the level of ordinary skill. The determination of skill level provides a basis for the Applicant to attack the determinations of the examiner or BPAI that are inconsistent with what one of ordinary skill would know. In this case, Applicant should have forced the Examiner to make a determination of skill level that would have required the Examiner to explain why the Examiner's interpretation of GPU was consistent with that of one of ordinary skill and the Applicant's was not. The Applicant could have pointed out that one of ordinary would have had the specific examples of the article in mind rather than the Examiner's overly broad, unreasonable definition.

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