Averill, Richard F. et al.

Patent Trials and Appeals Board

Dec 19, 2019

13782487 - (D) (P.T.A.B. Dec. 19, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/782,487 03/01/2013 Richard F. Averill 71408US002 3045
32692 7590 12/19/2019
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
EXAMINER
LULTSCHIK, WILLIAM G
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
12/19/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD F. AVERILL, JON EISENHANDLER,
DAVID E. GANNON, ANTHONY J. QUAIN,
JAMES A. SWITALSKI, and JAMES C. VERTREES
Appeal 2019-001229
Application 13/782,487
Technology Center 3600

Before JASON V. MORGAN, JEREMY J. CURCURI, and
ADAM J. PYONIN, Administrative Patent Judges.

PYONIN, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s rejection. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as 3M
Innovative Properties Company. Appeal Br. 3.
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STATEMENT OF THE CASE
Introduction
The Application is directed to “determining healthcare service
episodes,” which “include all healthcare events occurring within the defined
time period,” and are used to “establish reimbursement rates for healthcare
professionals” or “estimate a reimbursement amount . . . for treatment of one
or more patients.” Spec. ¶¶ 18, 20. Claims 1, 3–14, and 16–28 are pending.
Claims 1, 17, 27, and 28 are independent. Appeal Br. 46–58. Claim 1 is
reproduced below for reference (emphasis added):
1. A computer-implemented method of processing patient
healthcare data, the method comprising:
receiving, by one or more computers, dated patient
healthcare data associated with a patient, wherein the
dated patient healthcare data comprises information about
one or more of:
diagnosed conditions, delivered services or procedures,
severity indicators, or resource utilization data associated
with any delivered services or procedures;
determining, by the one or more computers, trigger
healthcare service events based on the patient healthcare
data, wherein the trigger healthcare service events
comprise one or more of inpatient admissions, outpatient
procedures, or outpatient healthcare services; and
determining, by the one or more computers, one or more
temporally non-overlapping healthcare service episodes
based on the determined trigger healthcare service events,
wherein determining the one or more temporally non-
overlapping healthcare service episodes comprises:
determining, by the one or more computers, an
episode window length and a first trigger healthcare
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service event associated with a first temporally non-
overlapping healthcare service episode;
determining, by the one or more computers,
whether a second trigger healthcare event occurs
within the episode window length associated with
the first healthcare service episode;
responsive to determining that the second trigger
healthcare service event occurs within the episode
window length associated with the first healthcare
service episode:
comparing, by the one or more computers, a
hierarchy rank of the first trigger healthcare
service event with a hierarchy rank of the
second trigger healthcare service event; and
one of:
terminating, by the one or more
computers, the first healthcare service
episode and initiating, by the one or
more computers, a second healthcare
service episode for the second trigger
healthcare service event if the
hierarchy rank of the second trigger
healthcare service event is greater
than the hierarchy rank of the first
trigger healthcare service event, or
subsuming, by the one or more
computers, the second trigger
healthcare service event into the first
healthcare service episode if the
hierarchy rank of the second trigger
healthcare service event is lower than
the hierarchy rank of the first trigger
healthcare service event; and
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outputting, by the one or more computers and as the one
or more temporally non-overlapping healthcare service
episodes, one of the first healthcare service episode or the
first healthcare service episode and the second healthcare
service episode.
References and Rejections
The Examiner relies on the following prior art:
Name Reference Date
Dang
Tong
Lynn
US 2010/0235197 A1
US 2011/0112853 A1
US 2013/0035960 A1
Sept. 16, 2010
May 12, 2011
Feb. 7, 2013

Claims 1, 3–14, and 16–28 stand rejected under 35 U.S.C. § 101 as
being patent ineligible. Final Act. 12.
Claims 7, 11, 20, and 24 stand are rejected under 35 U.S.C. § 112,
first paragraph, as failing to comply with the written description
requirement. Final Act. 16.
Claims 1, 3–6, 8, 14, 16–19, 21, 27, and 28 stand rejected under 35
U.S.C. § 103(a) as obvious in view of Lynn and Dang. Final Act. 23.
Claims 7, 9, 10, 12, 13, 20, 22, 23, 25, and 26 stand rejected under 35
U.S.C. § 103(a) as obvious in view of Lynn, Dang, and Tong. Final Act. 41.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments. Arguments Appellant could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). We
disagree with Appellant that the Examiner erred and adopt as our own the
findings and reasons set forth by the Examiner, to the extent consistent with
our analysis below. We add the following primarily for emphasis.
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We discuss each of the statutory grounds of rejection in turn, below.

Patent Eligibility
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, because “the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more.” Final Act. 12 (emphasis omitted); see also
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (describing the two-
step framework “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.”).
After the docketing of this Appeal, the USPTO published revised
guidance on the application of § 101 (“Guidance”). See, e.g., USPTO 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Memorandum”); USPTO October 2019 Update: Subject Matter
Eligibility (Oct. 17, 2019) (“Update”), noticed at 84 Fed. Reg. 55942 (Oct.
18, 2019).
Under Step 2A of the Guidance, the Office looks to whether the claim
recites:
(1) Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., mathematical concepts, certain
methods of organizing human activity such as a fundamental
economic practice, or mental processes); and
(2) Prong Two: additional elements that integrate the judicial
exception into a practical application (see MPEP §§ 2106.05(a)–
(c), (e)–(h)).
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Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then look, under Step
2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not well-understood, routine, conventional in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum, 84 Fed. Reg. 56.
We are not persuaded the Examiner’s rejection is in error. We add the
following primarily for emphasis and clarification with respect to the
Guidance.

A. Step 2A, Prong One
Pursuant to Step 2A, Prong One of the Guidance, we agree with the
Examiner that claim 1 recites a judicial exception, as the claim sets forth
steps in which “new[ly] received patient healthcare data is compared to
stored information and rules are used to identify one or more healthcare
service episodes based on trigger events.” Final Act. 13, 14; Memorandum,
84 Fed. Reg. 54. In particular, the claim recites: “receiving . . . dated patient
healthcare data”; “determining . . . trigger health care service events based
on the [dated] patient healthcare data”; “determining . . . one or more
temporally non-overlapping healthcare service episodes based on the
determined trigger healthcare service events”; and “outputting . . . the one or
more temporally non-overlapping healthcare service episodes.” That is,
these limitations describe determining and outputting a healthcare service
episode based on various healthcare data. Thus, these limitations recite
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collecting, analyzing, and outputting data in a manner that can be reasonably
characterized as “[m]ental processes” that entail steps of “observation,
evaluation, judgment, opinion.” Memorandum 84 Fed Reg. 52; see also
Update page 7; Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353
(Fed. Cir. 2016) (“The focus of the asserted claims . . . is on collecting
information, analyzing it, and displaying certain results of the collection and
analysis”); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1333
(Fed. Cir. 2015) (“the abstract idea of determining a price, using
organizational and product group hierarchies”).
Further, these steps describe a method for processing healthcare data,
which can be used for calculating payment for health services and
reasonably can be characterized as reciting “insurance,” “agreements in the
form of contracts,” “legal obligations,” “business relations,” and “following
rules or instructions.” Memorandum, 84 Fed Reg. 52; see also Spec. ¶ 18.
The claim thus recites “fundamental economic principles or practices,”
“managing personal behavior or relationships or interactions between
people,” and “commercial or legal interactions,” which are “[c]ertain
methods of organizing human activity.” Memorandum, 84 Fed Reg. 52; see
also Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d
1336, 1344 (Fed. Cir. 2013) (“the abstract idea of handling insurance-related
information”); In re Salwan, 681 F. App’x 938, 941 (Fed. Cir. 2017)
(Determining the claims were directed to “storing, communicating,
transferring, and reporting patient health information,” and that “while these
concepts may be directed to practical concepts, they are fundamental
economic and conventional business practices”).
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Accordingly, we conclude the claims recite a judicial exception under
Prong One of the Guidance. See Memorandum, 84 Fed Reg. 54.

B. Step 2A, Prong Two
Appellant argues the Examiner’s rejection is in error, because, “claim
1 recites very specific features that explain how a system can perform
several functions, such as determining one or more temporally non-
overlapping healthcare service episodes based on determined trigger
healthcare service events.” Appeal Br. 14. Unlike claims found to be
directed to abstract concepts, Appellant contends “claim 1 is directed to
much more specific subject matter for solving a technical problem related to
analyzing medical information and determining healthcare service
episodes,” which “solve[s] the specific technical problem confronted in
grouping treatment events to better track resources used for treating
patients.” Appeal Br. 15, 20.
We are not persuaded the Examiner errs in determining claim 1 is
directed to the recited judicial exception. See Final Act. 12–14. That the
claims may recite “very specific features” (Appeal Br. 17) is insufficient to
establish patent eligibility. See Ans. 5; Alice, 573 U.S. at 222 (quoting
Parker v. Flook, 437 U.S. 584, 593 (1978)) (“In holding that the process was
patent ineligible, we rejected the argument that ‘implement[ing] a principle
in some specific fashion’ will ‘automatically fal[l] within the patentable
subject matter of § 101.’”).
Claim 1 recites that “the dated patient healthcare data comprises
information about one or more of: diagnosed conditions, delivered services
or procedures, severity indicators, or resource utilization data associated
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with any delivered services or procedures” and “the trigger healthcare
service events comprise one or more of inpatient admissions, outpatient
procedures, or outpatient healthcare services.” At most, these recitations
merely link the underlying abstract idea to a field of use (i.e., the use of
certain types of healthcare data in connection with certain types of
healthcare service events). See Memorandum, 84 Fed. Reg. 55.
Claim 1 further recites that “determining the one or more temporally
non-overlapping healthcare service episodes comprises” a process of:
“determining . . . an episode window length and a first trigger healthcare
service event associated with a first temporally non-overlapping healthcare
service episode,” “determining . . . whether a second trigger healthcare event
occurs within the episode window length associated with the first healthcare
service episode,” “comparing . . . a hierarchy rank of the first trigger
healthcare event with a hierarchy rank of the second trigger healthcare
event,” and either “terminating . . . the first healthcare service episode and
initiating . . . a second healthcare service episode” or “subsuming . . . the
second trigger healthcare service,” depending on which trigger healthcare
event ranks highest. In other words, claim 1 recites eliminating overlaps by
giving priority to certain events in determining the non-overlapping
healthcare service episodes. Such prioritization does not represent a type of
limited rule structured to reflect a specific implementation that differs from
what a human categorizing healthcare events (e.g., a healthcare professional
estimating an expected reimbursement amount for treatment to a patient)
would likely have used. See McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1316 (Fed. Cir. 2016) (quoting Ass’n for Molecular
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Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 595–96 (2013)); see also
Spec. ¶ 18.
Additionally, these features relied on by Appellant can be reasonably
considered part of the judicial exception discussed above in Prong One, and
do not comprise additional elements, individually or in combination, that
integrate the exception into a practical application. See Memorandum, 84
Fed. Reg. 54–55. Claim 1 further recites “one or more computers,”
repeatedly, in addition to the limitations reciting the judicial exception. But
these additional “one or more computers” recitations merely recite applying
“the judicial exception . . . on a computer, or merely use[] a computer as a
tool to perform an abstract idea.” Memorandum, 84 Fed. Reg. 55; see also
Spec. ¶¶ 21, 23 (“The system comprises computer 110 that includes a
processor 112, a memory 114, and an output device 130. Computer 110
may also include many other components.”). This is not enough to integrate
the underlying abstract idea into a practical application. Memorandum, 84
Fed. Reg. 55.
Even considered as additional elements, we disagree with Appellant
that claim 1 solves a technical problem. See Appeal Br. 19, 20. Claim 1
recites a method of categorizing healthcare services. See Spec. ¶ 18. At
most, the method of claim 1 will yield benefits for billing and payment (i.e.,
financial and business improvements), rather than improving the underlying
computer or other technical systems. See Spec. ¶ 20 (“Healthcare
professionals and facilities may also use the systems and methods described
herein to estimate a reimbursement amount, thereby allowing them to
operate efficiently and within the reimbursement amounts set by the
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payors.”), ¶ 34 (“these techniques may reduce the complexity of establishing
reimbursement levels”).
Accordingly, we determine claim 1 does not integrate the judicial
exception into a practical application. See Memorandum, 84 Fed. Reg. 54.
As the “claim recites a judicial exception and fails to integrate the exception
into a practical application” (id. at 51), “the claim is directed to the . . .
judicial exception” (id. at 54).

C. Step 2B
We are not persuaded the Examiner errs in determining the additional
elements of claim 1 are “recited at a high level of generality, [and] provide
conventional computer functions that do not add meaningful limits to
practicing the abstract idea.” Final Act. 12. As discussed above,
Appellant’s arguments refer to the claimed “combination of steps” (Appeal
Br. 25) that recite the identified judicial exception; these steps are not
“additional elements individually and in combination” that may “provide an
inventive concept” amounting to “significantly more than the exception
itself.” Memorandum, 84 Fed. Reg. 55–56; see also Memorandum, 84 Fed.
Reg. 55, n.24. Outside of the identified judicial exception, the claim recites
hardware limitations which the Examiner determines are “[g]eneric
computer components recited as performing generic computer functions that
are well-understood, routine and conventional activities.” Final Act. 16. We
find the Examiner’s determination to be reasonable, in view of the record
before us. See Spec. ¶¶ 7, 8, 23–26, 45, 46, 65–71; see also Alice, 573 U.S.
at 226 (“Nearly every computer will include a ‘communications controller’
and ‘data storage unit’ capable of performing the basic calculation, storage,
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and transmission functions required by the method claims.”). Thus, we find
independent claim 1’s claim elements, individually and as an ordered
combination, do not provide significantly more than the recited judicial
exception.
We agree with the Examiner that claim 1 is patent ineligible.
Appellant does not present additional substantive arguments for the
remaining claims. See Appeal Br. 26–30. Accordingly, we do not find the
Examiner’s 35 U.S.C. § 101 rejection of claims 1, 3–14, and 16–28 is in
error.

Written Description
The Examiner finds the Specification lacks written description
support:
With regard to claims 7 and 20, the specification does not
provide sufficient written description of the claimed subject
matter to show that applicant had possession of a method or
system capable of determining the resource utilization value for
one of the healthcare service episodes based at least in part on
received input selections comprising a trigger healthcare service
event parameter and patient characteristic data.
. . . .
With regard to claims 11 and 24, the specification does not
provide sufficient written description of the claimed subject
matter to show that applicant had possession of a method or
system capable of determining the resource utilization value over
a time period selection based at least in part on received input
selections comprising an episode window parameter and a CRG
[clinical risk group] window parameter.
Final Act. 18 (emphasis omitted).
Appellant argues the Examiner’s rejection is in error, because a
“person of ordinary skill in the art would have understood that the resource
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utilization value is . . . a measure of charges or costs associated with treating
a patient in a particular healthcare setting,” and “would have understood that
Appellant had possession of using certain metrics or boundaries to determine
the resource utilization value for patients in certain situations.” Reply Br. 9,
10 (emphasis omitted); see also Appeal Br. 32.
Claims 7 and 11 each recite “determining the resource utilization
value based at least in part on” various parameters and data. We agree with
Appellant that the resource utilization value, as claimed, “is . . . a measure of
charges or costs.” Appeal Br. 32; see Spec. ¶ 53 (“For example, a resource
utilization value may comprise the totality of the charges issued by
healthcare professionals and facilities for treating a patient”). Appellant
does not identify, however, any explanation in the Specification of how the
measurement of a monetary value is determined based on the recited
parameters “such as ‘age, gender, race, height, weight, and other
demographic information’” or timing information. Appeal Br. 32, 33; see
also Final Act. 8–9; Spec. ¶¶ 55, 58. We thus agree with the Examiner that
Appellant has not shown “Applicant had possession of determining that
value . . . without any explanation of how the claimed invention
accomplishes that function” based on the recited parameters and data.
Advisory Act. 3; see also Examining Computer-Implemented Functional
Claim Limitations for Compliance with 35 U.S.C. 112, 84 Fed. Reg. 57, 61–
62 (Jan. 7, 2019) (“It is not enough that one skilled in the art could
theoretically write a program to achieve the claimed function, rather the
specification itself must explain how the claimed function is achieved to
demonstrate that the applicant had possession of it.”). For at least this
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reason, we sustain the Examiner’s written description rejection of claims 7,
11, 20, and 24.
Additionally, we note claim 11 (unlike claim 7) recites the parameters
in a list connected by the term “and”: “received input selections comprising
one or more of: an episode window parameter, a CRG window parameter,
patient characteristic data, and resource type parameters.” Although
Appellant argues that because “claim 11 recites ‘one or more’ of the four
different options, claim 11 does not require the episode window parameter
and the CRG window parameter to be used together,” Appellant fails to
show support in the Specification for such a claim reading. Reply Br. 10.
Nor does claim 11 unambiguously recite a Markush group. See Ex parte
Markush, 1925 Dec. Comm’r Pat. 126, 127–28 (1924) (the phrase “material
selected from the group consisting of aniline, homologues of aniline and
halogen substitutes of aniline” was a valid sub-generic claim recitation).
Therefore, claim 11, as drafted, recites the “received input selections” as
comprising a selection of each one of the listed parameters. See SuperGuide
Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 886 (Fed. Cir. 2004)
(“The phrase ‘at least one of’ precedes a series of categories of criteria, and
the patentee used the term ‘and’ to separate the categories of criteria, which
connotes a conjunctive list,” such that “the phrase ‘at least one of’ modifies
each member of the list, i.e., each category in the list” and “require[es] that
the user select at least one value for each category.”). Each of dependent
claims 20 and 24 similarly recites a list of terms connected by “and.” We
agree with the Examiner that the Specification does not provide written
description support for the claimed received input selections. See Ans. 11–
12.
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Accordingly, we sustain the Examiner’s written description rejection
of claims 7, 11, 20, and 24.

Obviousness
Appellant argues the Examiner’s rejection of independent claim 1 is in
error:
[O]ne of ordinary skill in the art would have consciously avoided
modifying the method of Lynn with the “shifting” from one
ETG[2] to another ETG described by Dang to arrive at the claimed
feature of “terminating, by the one or more computers, the first
healthcare service episode and initiating, by the one or more
computers, a second healthcare service episode for the second
trigger healthcare service event if the hierarchy rank of the
second trigger healthcare service event is greater than the
hierarchy rank of the first trigger healthcare service event,” as
recited by claim 1.
Appeal Br. 37. First, Appellant contends “Dang does not disclose that the
shift from one ETG to another ETG involves truncating the first ETG and
then starting a new ETG.” Appeal Br. 38, 39. Second, Appellant contends
“Dang describes the change in pat[i]ent condition is related to merely
shifting from one ETG to another ETG for a patient episode, which is
contrary to how the method of Lynn operates” and the Examiner’s
combination “would have change[d] the principle of operation of the Lynn
method.” Id. Third, Appellant contends that, “even if one of ordinary skill
in the art were to have modified the method of Lynn with the disclosure of
Dang, the anchor procedures in Lynn that overlap, but are different by
merely a change in patient condition, would be included under a single

2 “An episode treatment group (ETG) is a patient classification unit.” Dang,
Abstract.
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procedure episode group (PEG)[3],” and “this modified procedure to merely
have a single PEG would fail to meet the claim feature of terminating a first
healthcare episode and initiating a second healthcare episode.” Id. at 39
(emphasis omitted).
Appellant’s arguments are unpersuasive for not being responsive to
the Examiner’s rejection.
First, Appellant argues Dang does not teach ending an episode and
starting a new episode, but Appellant does not challenge the Examiner’s
reliance on Lynn for terminating and initiating episodes, as claimed.4 See
Reply Br. 12; Final Act. 24 (Lynn teaches “terminating, by the one or more
computers, the first healthcare service episode and initiating, by the one or
more computers, a second healthcare service episode for the second trigger

3 “Claim records are processed to determine whether any of the records
should be grouped with the anchor procedure into a procedure episode group
(PEG) using the date of service for each claim record and a level of
relationship between the claim records and the anchor procedure.” Lynn,
Abstract.
4 We note that independent claim 1 is a method claim, and independent
claims 14, 27, and 28 are apparatus claims. Thus, claims 14, 27, and 28
require the “terminating” limitation, whereas claim 1 may not require the
“terminating” limitation. This is because the “terminating” limitation is
listed as an alternative method step which may not be performed in the
claimed method. See claim 1 (“one of: terminating . . . or subsuming); Ex
parte Schulhauser, No. 2013-007847, 2016 WL 6277792, at *4 (PTAB Apr.
28, 2016) (precedential) (“[t]he Examiner did not need to present evidence
of the obviousness of the remaining method steps of claim 1 that are not
required to be performed under a broadest reasonable interpretation of the
claim.”). Although not reasonably necessary for our decision regarding the
obviousness rejection of claim 1, we discuss the “terminating” step herein, at
least because of its applicability to the remaining apparatus claims.

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healthcare service event.”); Lynn Fig. 10, ¶¶ 38, 77, 78. We agree with the
Examiner, because Lynn teaches truncating overlapping groupings, and
gathering patient claims “after the truncation date . . . to the PEG that was
encountered in the later time frame.” Lynn ¶ 77. Thus, we are not
persuaded the Examiner’s rejection—based on the combined teachings of
Lynn and Dang—is in error. See Ans. 12; see also In re Keller, 642 F.2d
413, 425 (CCPA 1981) (“The test for obviousness is not . . . that the claimed
invention must be expressly suggested in any one or all of the references.
Rather, the test is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.”).
Second, we find Appellant’s argument regarding Lynn’s principle of
operation to be unpersuasive, as Appellant never identifies what Lynn’s
principle of operation is, or how the Examiner’s combination improperly
changes Lynn. See Appeal Br. 38, 39. Thus, we agree with the Examiner
that one of ordinary skill would modify Lynn with the teachings of Dang in
the manner claimed. See Ans. 13.
Third, Appellant’s alternative proposed combination of Lynn and
Dang does not show the Examiner’s combination is in error. Contra Appeal
Br. 39. Although it is entirely possible one of ordinary skill would modify
Lynn and Dang to create “a single procedure episode group (PEG) that is
identified by a single anchor product,” Appellant does not provide sufficient
technical reasoning or evidence to show such alternative combination would
be the only obvious combination. Id. In contrast, the Examiner has
articulated a reason with rational underpinnings sufficient to justify the legal
conclusion of obviousness. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir
2006); Final Act. 11 (“[O]ne of ordinary skill in the art would modify the
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system of Lynn in this manner . . . as provided by Dang (see Dang
paragraphs 38, 75, and 89 discussing how using changes in acuity to start
and begin different ETGs accounts for shifts in patient condition).”).
We are not persuaded the Examiner’s obviousness rejection of
independent claim 1 is in error. Appellant does not provide additional
substantive arguments for the remaining claims. See Appeal Br. 40–45.
Accordingly, we sustain the obviousness rejections of these claims for the
reasons discussed above.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis/
Reference(s)
Affirmed Reversed
1, 3–14, 16–
28
101 Eligibility 1, 3–14, 16–28
7, 11, 20, 24 112, first
paragraph
Written
Description
7, 11, 20, 24
1, 3–6, 8,
14, 16–19,
21, 27, 28
103(a) Lynn, Dang 1, 3–6, 8, 14, 16–
19, 21, 27, 28

7, 9, 10, 12,
13, 20, 22,
23, 25, 26
103(a) Lynn, Dang,
Tong
7, 9, 10, 12, 13, 20,
22, 23, 25, 26

Overall
Outcome
1, 3–14, 16–28

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED