ThroughPuter v. Microsoft: Federal Circuit Affirms Unpatentability of Processor Scheduling Patents
ThroughPuter, Inc. appealed an unpatentability finding against Microsoft Corporation covering two patents on scheduling application instances to processor cores. The Federal Circuit affirmed the ruling in full, closing the appeal 449 days after filing and leaving ThroughPuter’s core scheduling IP invalidated.
Federal Circuit closes the door on ThroughPuter’s processor scheduling IP
ThroughPuter, Inc. filed this Federal Circuit appeal on 16 October 2023, challenging an earlier determination that US9632833 and US7889784B2 were unpatentable. Both patents relate to the scheduling of application instances across processor cores over consecutive allocation periods based on dynamic application requirements — a technically significant area as cloud and parallel computing workloads have grown. Microsoft Corporation was the respondent, defended by Fish & Richardson PC.
The Federal Circuit issued its affirmance on 7 January 2025, ordering that the lower tribunal’s unpatentability finding be affirmed in full. An affirmance at this level means the court identified no reversible error in the analysis below — whether on claim construction, the prior art record, or the legal standard applied. For ThroughPuter, the practical consequence is that both patents are cancelled and can no longer serve as enforceable assets against Microsoft or any other party.
At 449 days, the appeal concluded within what is broadly consistent with Federal Circuit case timelines, suggesting no extraordinary procedural complexity. The basis of termination — unpatentability rather than a procedural dismissal — indicates the court engaged with the merits. What remains unknown from the public record is the specific prior art or patentability grounds (e.g., §101, §102, or §103) that drove the unpatentability determination, and whether ThroughPuter retains any related continuation applications that could reopen the dispute.
Filing to Unpatentable in 449 days
449 days from filing to Federal Circuit decision — typical Federal Circuit appeals run 12–18 months
Federal Circuit affirms: what the unpatentability ruling means for both parties
Affirmance means the Federal Circuit found no reversible error below
When the Federal Circuit affirms, it concludes that the tribunal below committed no reversible legal error — whether in claim construction, application of the prior art, or the patentability standard. The unpatentability finding is now final at this appellate level. ThroughPuter’s only remaining avenue would be a petition to the Supreme Court, which grants certiorari in a small fraction of patent cases.
Appellate affirmance — merits reviewedThroughPuter loses enforceability of both scheduling patents
With both US9632833 and US7889784B2 affirmed as unpatentable, ThroughPuter can no longer assert these patents against Microsoft or any third party. The cancellation eliminates the IP leverage that likely underpinned the original enforcement strategy. Any licensing programme built around these claims is effectively extinguished unless ThroughPuter holds related continuation or divisional applications with surviving claims.
Patents cancelled — no further enforcementMicrosoft secures freedom to operate in processor scheduling
Microsoft’s successful defence — supported by Fish & Richardson PC — removes two patent barriers covering scheduler-based processor core allocation. The affirmance provides Microsoft with confirmed freedom to operate in this space without exposure to these specific claims. For a company deploying large-scale parallel and cloud computing infrastructure, eliminating scheduling-related patent risk carries meaningful commercial value.
Defendant prevails — FTO confirmedProcessor scheduling IP faces higher bar after this affirmance
The cancellation of claims covering application-instance scheduling across processor cores over consecutive allocation periods suggests the prior art landscape in this area is dense. Competitors and cloud platform vendors operating in dynamic workload scheduling should note that this decision strengthens the position that broad scheduling claims may be vulnerable. IP teams should audit portfolios covering similar scheduler architectures for comparable exposure.
Scheduling IP risk elevatedFull party and counsel information
| Role | Name | Type | Detail |
|---|---|---|---|
| Plaintiff | THROUGHPUTER, INC. | Company | Processor scheduling technology company — holder of US9632833 and US7889784B2Search in Eureka ↗ |
| Defendant | Microsoft Corporation | Company | Microsoft Corporation — global enterprise software and cloud computing leaderSearch in Eureka ↗ |
| Plaintiff counsel | William Cook Alciati | Attorney | Counsel for THROUGHPUTER, INC.Search in Eureka ↗ |
| Plaintiff law firm | CHEN | Law Firm | Representing THROUGHPUTER, INC.Search in Eureka ↗ |
| Plaintiff law firm | PROST | Law Firm | Representing THROUGHPUTER, INC.Search in Eureka ↗ |
| Plaintiff law firm | TARANTO | Law Firm | Representing THROUGHPUTER, INC.Search in Eureka ↗ |
| Defendant counsel | Benjamin Joseph Christoff | Attorney | Counsel for Microsoft CorporationSearch in Eureka ↗ |
| Defendant counsel | Christopher Dryer | Attorney | Counsel for Microsoft CorporationSearch in Eureka ↗ |
| Defendant counsel | Lauren Ann Degnan | Attorney | Counsel for Microsoft CorporationSearch in Eureka ↗ |
| Defendant counsel | Walter Karl Renner | Attorney | Counsel for Microsoft CorporationSearch in Eureka ↗ |
| Defendant law firm | Fish & Richardson PC | Law Firm | Representing Microsoft CorporationSearch in Eureka ↗ |
| Presiding judge | Judge N/A | Judge | Court of Appeals for the Federal CircuitSearch in Eureka ↗ |
Official order — verbatim text
The Federal Circuit’s order — ‘AFFIRMED’ on a verdict cause of patentability in an invalidity/cancellation action — indicates the court conducted a merits review and found the unpatentability determination below to be legally sound. Affirmance at the Federal Circuit, applying deferential review to factual findings and de novo review to legal conclusions on patentability, means ThroughPuter failed to demonstrate reversible error in the underlying record. Both patents are now finally cancelled, and the ruling binds all parties.
US9632833 & US7889784B2 — Processor Core Scheduling Technology
US9632833 (application no. US15/067308) and US7889784B2 (application no. US12/779708) both cover technology for scheduling application instances to processor cores over consecutive allocation periods, dynamically adjusted based on application requirements. This falls within the field of multi-core processor resource management — a domain central to modern cloud infrastructure, virtualisation, and high-performance computing. The earlier priority of US7889784B2 suggests foundational claims in this scheduling architecture.
In a landscape where cloud providers and hyperscalers compete aggressively on workload efficiency, patents covering dynamic processor core allocation methods carry both offensive and defensive value. The Federal Circuit’s affirmance of unpatentability signals that the claims as written were insufficiently distinguished from the prior art. For competitors, this reduces one layer of third-party patent risk in scheduler design — but the broader category of processor scheduling IP remains actively contested territory at the USPTO and in litigation.
Should you run an FTO against US9632833 and US7889784B2?
Engineering and product teams building dynamic workload schedulers, cloud orchestration platforms, or multi-core processor allocation systems should note that while US9632833 and US7889784B2 are now cancelled, related continuation or divisional applications from ThroughPuter may still be in prosecution. Any product that schedules application instances across processor cores using allocation-period logic warrants a current FTO review against the full ThroughPuter patent family.
PatSnap Eureka’s FTO Search Agent can map your product’s scheduling architecture against the full ThroughPuter application family, identify surviving related claims, and surface prior art that could further limit any future assertions. Eureka’s claim-level analysis and family tree visualisation help IP and R&D teams identify risk before it becomes litigation — run a targeted FTO search on US9632833 and US7889784B2 family members today.
Run a freedom-to-operate analysis on US9632833 to assess your product’s exposure
Run FTO in Eureka →Similar Federal Circuit processor scheduling patent appeals
Browse Federal Circuit appeals involving processor scheduling, multi-core allocation, and cloud computing patents — the same technical and legal domain as ThroughPuter v. Microsoft.
What this case signals for the processor scheduling IP landscape
The Federal Circuit’s affirmance in ThroughPuter v. Microsoft has concrete implications for IP strategy across cloud, parallel computing, and processor architecture sectors.
Processor scheduling claims face substantial unpatentability risk
Two patents covering scheduling of application instances to processor cores over consecutive allocation periods were found unpatentable and affirmed on appeal. Companies holding or pursuing similar claims should assess whether their claim scope is sufficiently differentiated from the prior art to survive IPR or inter partes review proceedings.
Microsoft’s Fish & Richardson team sets a strong defensive precedent
The defence strategy — securing an unpatentability finding affirmed at the Federal Circuit level — represents a complete outcome for Microsoft. R&D and IP teams at other cloud and enterprise platform vendors facing similar scheduling patent assertions can reference this outcome when evaluating their own defence options.
THROUGHPUTER v Microsoft — key questions answered
The Federal Circuit affirmed the unpatentability of ThroughPuter’s patents US9632833 and US7889784B2 in case 24-1040, decided 7 January 2025. The court found no reversible error in the lower tribunal’s cancellation of both patents, which cover scheduling application instances to processor cores over consecutive allocation periods.
ThroughPuter asserted two patents: US9632833 (application US15/067308) and US7889784B2 (application US12/779708). Both cover technology relating to scheduling application instances to processor cores over consecutive allocation periods based on application requirements.
An affirmance on unpatentability means the Federal Circuit upheld the cancellation of ThroughPuter’s patent claims. The patents can no longer be enforced against Microsoft or any third party. ThroughPuter’s remaining option would be a Supreme Court petition, which succeeds in only a small fraction of patent cases. Related continuation applications, if any exist, would not be affected by this ruling.
Microsoft Corporation was represented by Fish & Richardson PC, with attorneys Benjamin Christoff, Christopher Dryer, Lauren Degnan, and Walter Renner. ThroughPuter was represented by William Cook Alciati. The Federal Circuit panel included Judges Chen, Prost, and Taranto.
The cancellation of US9632833 and US7889784B2 removes these specific patent barriers for processor scheduling products. However, companies should audit for related ThroughPuter continuation or divisional applications that may survive. Products involving dynamic allocation of application workloads across processor cores should be reviewed against the broader ThroughPuter patent family before assuming full freedom to operate.
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