Mark H. Sandstrom v. Microsoft Corporation

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK H. SANDSTROM,
Appellant
v.
MICROSOFT CORPORATION,
Appellee
______________________
2024-1040, 2024-1179
______________________
Appeals from the United States Patent and Trade-
mark Office, Patent Trial and Appeal Board in Nos.
IPR2022-00527, IPR2022-00528.
______________________
Decided: January 7, 2025
______________________
MARK H. SANDSTROM , Alexandria, VA, pro se.
L AUREN A NN D EGNAN, Fish & Richardson P.C., Wash-
ington, DC, for appellee. Also represented by BENJAMIN
J OSEPH CHRISTOFF , CHRISTOPHER D RYER , WALTER K ARL
RENNER.
______________________
Before P ROST , T ARANTO, and CHEN, Circuit Judges.
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SANDSTROM v. MICROSOFT CORPORATION 2
P ER CURIAM .
Appellant Mark Sandstrom is the named inventor,
and now the assignee, of U.S. Patent No. 9,632,833 and
its parent, No. 9,424,090, which describe and claim relat-
ed methods and systems for assigning processor cores
among applications to improve processing efficiency.
Microsoft Corporation petitioned the Patent and Trade-
mark Office (PTO) to institute inter partes reviews of
multiple claims of the two patents, under 35 U.S.C.
§§ 311–19, alleging unpatentability for obviousness. The
PTO’s Patent Trial and Appeal Board, acting for the PTO
Director, instituted the requested reviews, and the Board,
after conducting the reviews, concluded that all the chal-
lenged claims were unpatentable for obviousness. Mi-
crosoft Corp. v. ThroughPuter, Inc., No. IPR2022-00527,
2023 WL 6115987 (P.T.A.B. Sept. 18, 2023) (’833 Deci-
sion); Microsoft Corp. v. ThroughPuter, Inc., No. IPR2022-
00528, 2023 WL 6122631 (P.T.A.B. Sept. 18, 2023) (’090
Decision). ThroughPuter, Inc., the assignee at the time,
appealed, and Mr. Sandstrom, upon thereafter becoming
the assignee, was substituted as appellant. We now
affirm.
I
A
The ’833 patent, titled “Scheduling Application In-
stances to Processor Cores over Consecutive Allocation
Periods Based on Application Requirements,” was issued
on April 25, 2017, and the ’090 patent, its parent, titled
“Scheduling Tasks to Configurable Processing Cores
Based on Task Requirements and Specification,” was
issued on August 23, 2016. The patents share a specifica-
tion, so we cite only to the ’833 specification for simplicity.
The patents recite as a background fact that a com-
puter may be assigned different types of tasks (or jobs)
and that different processors may be best suited for
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SANDSTROM v. MICROSOFT CORPORATION 3
carrying out different assignments. ’833 patent, col. 1,
line 43, through col. 2, line 3. Including different proces-
sors (or processor cores) in the computer and matching
task types to processor types, the patents add, can result
in savings of time, energy, and other costs. See id., col. 2,
lines 23–28. The patents describe and claim methods and
systems for doing just that. Id., col. 1, lines 38–41.
The patents assert, however, that it is difficult to as-
sign multiple tasks to multiple processors in a way that
maximizes efficiency across the processors. Id., col. 2,
lines 4–17 (explaining that it is “infeasible to predict” at
“a given instance of processing,” the “optimal type of core
for any given processor instance,” which may lead to
processing of jobs by “suboptimal types of processing
cores”). The patents propose a solution. Id., col. 4, lines
1–9 (explaining that the claimed invention “provides a . . .
processor system for executing . . . tasks of differing types
on their assigned cores of matching types”). Figure 3
shows an embodiment:
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SANDSTROM v. MICROSOFT CORPORATION 4
In the embodiment shown, at each time period, “re-
ferred to as a core allocation period (CAP),” id., col. 10,
lines 61–63, the system first allocates its processor cores
among applications (e.g., “software programs,” id., col. 10,
line 50) based on the applications’ respective core de-
mands (e.g., which core types and how many it can use,
id., col. 9, lines 4–7, 24–28) and entitlements (e.g., how
many it is entitled to use, id., col. 13, lines 4–7). Id., col.
10, lines 53–59. The system next selects the highest
priority instances of the applications to be executed in the
next CAP. Id., col. 10, line 66, through col. 11, line 2.
Finally, the system maps selected instances to best-suited
processor cores. Id., col. 11, lines 2–4.
For the ’833 patent, claim 15 is representative:
15. A method for assigning instances of software
programs to an array of processor cores compris-
ing:
for each of a series of successive core allocation
periods (CAPs), selecting, from a group of execut-
able instances of a set of software programs, a
subset of the executable instances, referred to as
selected instances, for execution on the cores of
the array for an upcoming CAP, wherein the se-
lection of the selected instances is based, at least
in part, on a respective capacity demand indica-
tion of each of the set of software programs, with
said indication of a given program (a) being based
at least in part on a number of its executable in-
stances that presently have input data available
for processing and (b) indicating processor core
types demanded by its executable instances;
assigning each of the selected instances for execu-
tion on a processor core in the array of processor
cores based, at least in part, on matching the re-
spective demanded processor core types associated
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SANDSTROM v. MICROSOFT CORPORATION 5
with the selected instances with types of processor
cores available for assignment; and
executing the selected instances on their assigned
cores over the next CAP, at least in part, to pro-
cess the input data.
Id., col. 21, line 60, through col. 22, line 16.
For the ’090 patent, claim 1 is representative:
1. A method for assigning a set of processing tasks
to an array of processor cores of configurable
types, the method comprising:
executing time variable subsets of the processing
tasks of differing types on their assigned processor
cores of matching types, wherein the matching
type for the assigned processor core for a given
processing task of the set corresponds to a type of
a processor core demanded by the given pro-
cessing task;
for each of a series of core allocation periods
(CAPs), selecting, from the set of processing tasks,
specific tasks, referred to as selected tasks, for ex-
ecution on the processor cores for a next CAP at
least in part based on core capacity demand ex-
pressions associated with the processing tasks;
assigning the selected tasks for execution on the
processor cores for the next CAP in a manner to
maximize, within the array, a number of processor
cores whose assigned processing tasks for a pre-
sent and the next CAP demands the same type of
processor core; and
configuring the array such that the type of any
given processor core in the array matches the type
of processing task assigned for execution on the
given processor core for the next CAP.
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SANDSTROM v. MICROSOFT CORPORATION 6
’090 patent, col. 19, line 59, through col. 20, line 15.
B
In March 2021, then-assignee ThroughPuter sued Mi-
crosoft in district court, alleging infringement of the ’833
and ’090 patents, along with other patents not at issue
here. In February 2022, Microsoft petitioned for institu-
tion of inter partes reviews (IPRs) of claims 10, 13–15,
17–22, 24, 25, 27, 29, 32–34, and 37 of the ’833 patent and
claims 1–7 and 9–15 of the ’090 patent. The Board insti-
tuted the IPRs in September 2022—IPR2022-00527 for
the ’833 patent and IPR2022-00528 for the ’090 patent.
The Board issued final written decisions for both patents
on September 18, 2023.
1
In its ’833 Decision, the Board determined that all the
challenged claims were unpatentable for obviousness
under 35 U.S.C. § 103.1 The Board first determined that
a relevant artisan would have been motivated to combine,
and had a reasonable expectation of success in combining,
the teachings of two pieces of prior art—Agrawal2 and
1 The ’833 and ’090 patents claim priority to before
March 16, 2013, so the applicable version of § 103 here is
the one that pre-dates the Leahy-Smith America Invents
Act (AIA), Pub. L. No. 112-29, 125 Stat. 284 (2011). See
’833 Decision, at *3 n.1; ’090 Decision, at *2 n.1. Because
the AIA-made changes do not alter the obviousness analy-
sis in these cases, we cite § 103 without including a date.
2 Kunal Agrawal et al., “Adaptive Scheduling with
Parallelism Feedback,” Proceedings of the 2006 ACM
SIGPLAN Symposium on Principles and Practice of
Parallel Programming, 2006. J.A. 856–65.
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SANDSTROM v. MICROSOFT CORPORATION 7
Brent3—to arrive at claims 15, 17, 18, 34, and 37. ’833
Decision, at *5–18. The Board found that Agrawal dis-
closes a “two-level” scheduler in which a “job scheduler []
allots processors to jobs” and a “task scheduler [] sched-
ules the tasks belonging to a given job onto the allotted
processors.” Id. at *5 (quoting J.A. 856). The Board also
found that Agrawal teaches the technique of “instantane-
ous parallelism,” in which the job scheduler considers “the
number of processors the job can effectively use at the
current moment” to decide how to allocate processors to
jobs for the upcoming period. Id. at *6 (quoting J.A. 857).
It found that Brent teaches a system with several differ-
ent types of processing cores in which “each task may be
assigned a preferred core type for optimal execution.” Id.
(citing J.A. 870 ¶¶ 3, 8; J.A. 871 ¶ 18). The Board deter-
mined that a relevant artisan would have had the motiva-
tion and ability to combine Agrawal’s teachings with
Brent’s disclosure of matching processor core types to task
types, id. at *11 n.12 (citing J.A. 759–60 ¶ 68 (Microsoft’s
expert declaration)), leading to the conclusion that the
subject matter of claims 15, 17, 18, 34, and 37 would have
been obvious to a relevant artisan, id. at *18.
The Board then considered the combination of
Agrawal, Brent, and a third piece of prior art, Feitel-
son4—a combination covering all the remaining chal-
lenged claims. Id. The Board found that Feitelson
teaches different approaches to “scheduling on parallel
computer systems shared by a number of users.” Id.
(citing J.A. 874). The Board, citing suggestions in Feitel-
3 U.S. Patent Application Publication No.
2010/0131955 A1. J.A. 866–73.
4 Dror G. Feitelson, “Job Scheduling in Multipro-
grammed Parallel Systems,” IBM Research Report RC
19790 (87657), 2nd Rev., August 1997. J.A. 874–1041.
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SANDSTROM v. MICROSOFT CORPORATION 8
son, agreed with Microsoft that a relevant artisan would
have found it obvious to combine Feitelson’s job-
scheduling techniques with the teachings of Agrawal and
Brent. See id. at *21 (explaining that a relevant artisan
“would have found it obvious to apply Feitelson’s sugges-
tion” to an Agrawal-Brent combination); id. at *26 (agree-
ing with Microsoft that a relevant artisan would use a
suggestion in Feitelson to “avoid[] wasted or unutilized
resources” (citing J.A. 2477 ¶ 26)). The Board ultimately
held that the subject matter of claims 10, 13, 14, 19–22,
24, 25, 27, 29, 32, and 33 would have been obvious to a
relevant artisan based on the combination of Agrawal,
Brent, and Feitelson. Id. at *30.
2
In its ’090 Decision, the Board similarly determined
that all the challenged claims were unpatentable for
obviousness. Id. at *19. The Board first found that a
relevant artisan would have had the motivation and
ability to combine Agrawal with another piece of prior art,
Chen,5 to arrive at the methods of claims 1–5 and 7. Id.
at *4–13. The Board found that Chen discloses an operat-
ing system, which it models as a rectangular grid of
configurable logic blocks (CLBs) (e.g., processors), where
processes are assigned to CLBs within the grid. Id. at *4–
5 (citing J.A. 3321–22). In particular, the Board found
that Chen teaches a scheduling algorithm to maximize
processing efficiency by scheduling processes to CLBs in
the grid to achieve “parallel execution of multiple process-
es.” Id. at *5 (citing J.A. 3322–23). The Board made the
5 G. Chen et al., “Configuration-Sensitive Process
Scheduling for FPGA-Based Computing Platforms,”
Proceedings Design, Automation and Test in Europe
Conference and Exhibition, Vol. 1, pp. 486–93 (2004). J.A.
3321–23.
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SANDSTROM v. MICROSOFT CORPORATION 9
same findings regarding Agrawal that it did in its ’833
Decision. Id. at *5–6; see supra Section I.B.1. The Board
found that a relevant artisan “would have been motivated
to combine Chen and Agrawal, with a reasonable expecta-
tion of success,” id. at *9, and that the subject matter of
claims 1–5 and 7 would have been obvious to a relevant
artisan based on that combination, id. at *13.
The Board then held that claims 3 and 4 would have
been obvious under the combination of Chen, Agrawal,
and a further piece of prior art, Compton.6 Id. at *13–14.
The Board found that Compton “presents a survey of
current research in hardware and software systems for
reconfigurable computing,” including systems that “cus-
tomiz[e] how the hardware is used” so that “the same
hardware” overall can “execute different applications.”
Id. at *13 (quoting IPR2022-00528, Ex. 1006, at 171, 173–
74). The Board agreed with Microsoft that a relevant
artisan would have combined Compton’s teachings on
“reconfigurable devices,” which cover Field-Programmable
Gate Arrays (FGPAs) like those taught by Chen, with the
systems disclosed by Chen and Agrawal, id. at *13, and
that “the limitations of each of claims 3 and 4 are ren-
dered obvious by the combination of Chen, Agrawal, and
Compton,” id. at *14.
Finally, the Board turned to Microsoft’s contention
that claims 1, 2, 5–7, and 9–15 are unpatentable for
obviousness in light of Chen, Agrawal, and Brent. Id. at
*14–19. The Board made the same findings regarding
Brent that it did in the ’833 Decision. Id. at *14, see supra
Section I.B.1. Then, the Board found that that a relevant
6 Katherine Compton & Scott Hauck, “Reconfigura-
ble Computing: A Survey of Systems and Software,” ACM
Computing Surveys, Vol. 34, No. 2, June 2002, pp. 171–
210. IPR2022-00528, Ex. 1006.
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SANDSTROM v. MICROSOFT CORPORATION 10
artisan implementing a Chen-Agrawal system “would
have naturally looked to Brent for an example of a system
where tasks include explicit indications regarding the
best-fitting or more suitable region or core type for the
respective task.” Id. at *15 (citing J.A. 3280–81 ¶ 155).
The Board ultimately held that the combination of Chen,
Agrawal, and Brent would have rendered claims 1, 2, 5–7,
and 9–15 unpatentable for obviousness. Id. at *19.
II
We have jurisdiction to review the two Board deci-
sions under 28 U.S.C. § 1295(a)(4)(A). The obviousness
determination by the Board rests on a familiar basis—
that “a skilled artisan not only could have made but
would have been motivated to make the combinations or
modifications of prior art to arrive at the claimed inven-
tion.” Belden Inc. v. Berk-Tek LLC, 805 F.3d 1064, 1073
(Fed. Cir. 2015) (citing InTouch Technologies, Inc. v. VGO
Communications, Inc., 751 F.3d 1327, 1352 (Fed. Cir.
2014)). We review the Board’s ultimate determination of
obviousness de novo but the underlying factual determi-
nations for substantial-evidence support. Personal Web
Technologies, LLC v. Apple, Inc., 848 F.3d 987, 991 (Fed.
Cir. 2017) (citing In re Gartside, 203 F.3d 1305, 1312
(Fed. Cir. 2000)). On the factual components of the in-
quiry, we “ask[] ‘whether a reasonable fact finder could
have arrived at the agency’s decision,’” which “requires
examination of the ‘record as a whole, taking into account
evidence that both justifies and detracts from an agency’s
decision.’” Intelligent Bio-Systems, Inc. v. Illumina Cam-
bridge Ltd., 821 F.3d 1359, 1366 (Fed. Cir. 2016) (quoting
Gartside, 203 F.3d at 1312). When the Board’s claim
constructions are challenged, the overall decision about
the proper construction is a legal conclusion, reviewed de
novo on appeal, but if there are underlying factual find-
ings, they are reviewed for substantial-evidence support.
See St. Jude Medical, LLC v. Snyders Heart Valve LLC,
977 F.3d 1232, 1238 (Fed. Cir. 2020).
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SANDSTROM v. MICROSOFT CORPORATION 11
On appeal, Mr. Sandstrom argues that the Board’s
decisions contain several prejudicial errors, so they must
be set aside. We reject Mr. Sandstrom’s challenges.
A
Mr. Sandstrom challenges the Board’s finding that a
relevant artisan would have been motivated to combine
Agrawal and Brent in the ’833 Decision or to combine
Chen and Agrawal in the ’090 Decision. Sandstrom
Informal Br. at 19–23. He argues that there is no evi-
dence of any real-world practical combination of Agrawal
and Brent, id. at 21–22, and that “the stated goals of
Chen and Agrawal would not have seemed compatible” to
a relevant artisan, id. at 19. We disagree.
The Board explained its findings that a relevant arti-
san would have been motivated to make the relevant
combinations, and in doing so it cited bases that we
readily conclude make the findings reasonable in light of
any contrary evidence cited to us. In its ’833 Decision, the
Board explained that a relevant artisan would have been
motivated to combine Agrawal and Brent because both
are “directed to systems for scheduling tasks in a parallel
processing environment.” ’833 Decision, at *11 n.12
(citing J.A. 758 ¶ 66 (Microsoft’s expert declaration); J.A.
856–58 (Agrawal); J.A. 870–72 ¶¶ 13, 20, 26 (Brent)). The
Board found that the combination would have been moti-
vated by a desire “to achieve predictable benefits, includ-
ing an improved ability to optimize task execution on a
processor whose instruction set matches the instruction
types provided in a task.” Id. (citing J.A. 758–59 ¶ 67
(Microsoft’s expert declaration); J.A. 866, Abstract; J.A.
871 ¶¶ 16, 18, 19 (Brent)). To the extent Mr. Sandstrom
suggests that the obviousness showing requires identifica-
tion of an existing real-world combination, he cites, and
we know of, no persuasive authority for such a require-
ment, which would run counter to the “would have been
obvious” language of § 103.
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SANDSTROM v. MICROSOFT CORPORATION 12
In its ’090 Decision, the Board made comparable find-
ings, supported by substantial evidence, that a relevant
artisan “would have been motivated to combine Chen and
Agrawal, with a reasonable expectation of success.” ’090
Decision, at *9. The Board found, citing evidence, that a
relevant artisan “would have recognized that, like Chen,
Agrawal is directed to a space-sharing system for schedul-
ing tasks to hardware by means of its greedy task sched-
uler.” Id. (citing J.A. 3263–64 ¶ 103 (Microsoft’s expert
declaration); J.A. 858 (Agrawal)). The Board also deter-
mined, citing evidence, that such an artisan “would have
been motivated to modify Chen’s method with Agrawal’s
use of scheduling quanta [i.e., making scheduling assign-
ments at certain time intervals] for making favorable
choices for space allocation across the array.” Id. (citing
J.A. 3263–64 ¶ 103 (Microsoft’s expert declaration). Mr.
Sandstrom has not shown why those findings are not
reasonable considering the evidence as a whole.
B
Mr. Sandstrom argues that the Board did not show
that the prior art would have enabled a relevant artisan
to make and use the claimed inventions. See generally
Sandstrom Informal Br. at 16–25 (citing Raytheon Tech-
nologies Corp. v. General Electric Co., 993 F.3d 1374, 1380
(Fed. Cir. 2021) (“To render a claim obvious, the prior art,
taken as a whole, must enable a skilled artisan to make
and use the claimed invention.”)). Specifically, he argues
that the Board in its ’833 Decision did not explain how the
prior art would have enabled claim 15’s requirement of
“selecting, from a group of executable instances of a set of
software programs . . . wherein the selection of the select-
ed instances is based, at least in part, on a respective
capacity demand indication of each of the set of software
programs.” ’833 patent, col. 21, line 63, through col. 22,
line 2; see also Sandstrom Informal Br. at 9–10, 12–15, 22.
He also argues that the Board in its ’090 Decision did not
explain that the prior art enabled a relevant artisan to
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SANDSTROM v. MICROSOFT CORPORATION 13
achieve claim 1’s limitation, “for each of a series of core
allocation periods (CAPs), selecting . . . specific tasks . . .
for execution on the processor cores for a next CAP at
least in part based on core capacity demand expressions
associated with the processing tasks.” ’090 patent, col. 20,
lines 1–6; Sandstrom Informal Br. at 21 (emphasis omit-
ted).
Mr. Sandstrom did not make either of these enable-
ment arguments to the Board. See generally J.A. 2240–
77; J.A. 2645–76; J.A. 3693–3704; J.A. 3720–37. The
arguments are therefore forfeited, given the important
principle that strongly precludes faulting the Board for
inadequacies not timely and fairly called to its attention.
See In re Google Technology Holdings LLC, 980 F.3d 858,
863 (Fed. Cir. 2020) (“[A] position not presented in the
tribunal under review will not be considered on appeal in
the absence of exceptional circumstances.”).
On the merits, too, the argument fails on the record
actually developed. The Board in its ’833 Decision found
that Agrawal, which itself discloses using “instantaneous
parallelism,” i.e., “the number of processors the job can
effectively use at the current moment,” would have met
claim 15’s limitation. ’833 Decision, at *10 (citing J.A. 857
(Agrawal)). And in its ’090 Decision, the Board, with
substantial support from Microsoft’s expert declaration
and the prior art references themselves, determined that
Agrawal’s disclosure of “scheduling quanta,” i.e., schedul-
ing tasks at regular time periods, and Chen’s disclosure of
considering the processing needs of different applications
in scheduling “to maximize FPGA utilization,” would have
enabled the claim 1 limitation Mr. Sandstrom highlights.
’090 Decision, at *9–10 (citing J.A. 782 ¶ 102 (Microsoft’s
expert declaration), J.A. 857 (Agrawal); J.A. 3323 (Chen)).
Mr. Sandstrom has shown no reversible error regarding
enablement for obviousness purposes.
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SANDSTROM v. MICROSOFT CORPORATION 14
C
Mr. Sandstrom makes what amounts to a claim-
construction argument about claim 1 of the ’090 patent.
Sandstrom Informal Br. at 8–12. He argues that the
Board ignored claim 1’s feature of “concurrently seeking
collective optimality” and requirement of first selecting
tasks to run and then assigning processors to tasks. Id.
at 8. We disagree.
First, while Mr. Sandstrom perceives collective opti-
mality to be an intended benefit of his invention, there is
no such limitation within the claim. See Howmedica
Osteonics Corp. v. Wright Medical Technology, Inc., 540
F.3d 1337, 1347 (Fed. Cir. 2008) (“[T]he inventor’s subjec-
tive intent is irrelevant to claim construction.”). Second,
Mr. Sandstrom did not present his order-of-steps claim-
construction argument to Board, J.A. 3693–3704; J.A.
3720–37, so it is forfeited. See In re Google, 980 F.3d at
863. We further note that although claim 1 does recite
selecting tasks before it recites assigning tasks to proces-
sors, method claims like claim 1 of the ’090 patent “are
not ordinarily construed to require” that recited steps (one
of which necessarily is recited before the other) must be
performed in the recited order. See, e.g., Interactive Gift
Express, Inc. v. Compuserve, Inc., 256 F.3d 1323, 1342
(Fed. Cir. 2001). Mr. Sandstrom has not shown that the
matter he now raises is an exception.
III
We have considered Mr. Sandstrom’s other arguments
and find them unpersuasive. For the foregoing reasons,
we affirm the Board’s decisions.
The parties shall bear their own costs.
AFFIRMED
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