Cecil O. Lynch et al.Download PDFPatent Trials and Appeals BoardSep 3, 201914092168 - (D) (P.T.A.B. Sep. 3, 2019) Copy Citation 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. 14/092,168 11/27/2013 Cecil O. Lynch 10022-2355 9645 28164 7590 09/03/2019 BGL/Accenture - Chicago BRINKS GILSON & LIONE P O BOX 10395 CHICAGO, IL 60610 EXAMINER DURANT, JONATHAN W ART UNIT PAPER NUMBER 3626 MAIL DATE DELIVERY MODE 09/03/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte CECIL O. LYNCH, DENNIS CARROLL, and ANDREW J. TRUSCOTT1 ________________ Appeal 2018-004059 Application 14/092,168 Technology Center 3600 ________________ Before JASON V. MORGAN, JEREMY J. CURCURI, and JOSEPH P. LENTIVECH, Administrative Patent Judges. MORGAN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Introduction This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. Summary of the disclosure The Specification discloses a patient anonymizing system using salted hashing of confidential protected health information (PHI) to generate an 1 Appellant is the applicant and real party in interest, Accenture Global Services Limited. Br. 2. Appeal 2018-004059 Application 14/092,168 2 anonymized record. Abstract. The Specification further discloses a master patient index server that aggregates anonymized records using match confidence levels produced: (1) through the use of comparison vectors generated by comparing hash values of confidential PHI for anonymized records and (2) through the use of a confidence vector weighing match conditions. Id. Exemplary claim (key limitations emphasized) 1. A system for anonymizing and aggregating protected health information (PHI) from a plurality of data sources, the system comprising: a plurality of data hashing appliances each operatively coupled to a respective data source, each hashing appliance configured to receive from the respective data source, one or more patient medical records, each patient medical record containing at least one data element corresponding to confidential protected health information (PHI), and a master record number (MRN) assigned by the respective data source, each data hashing appliance configured to: append a salt value to each data element corresponding to confidential PHI in the patient medical record; generate a hash value for each data element corresponding to salted confidential PHI; replace the data element corresponding to confidential PHI with the corresponding generated hash value to generate an anonymized patient medical record; a master patient index server coupled to a data repository, configured to cluster a plurality of anonymized patient medical records received from the plurality of data hashing appliances under a unique patient identifier; a vector and cluster matching engine operatively coupled to the master patient index server and the data repository that includes a processor and non-transitory computer readable media coupled to the processor for causing the processer to determine Appeal 2018-004059 Application 14/092,168 3 if a newly received anonymized patient medical record received from a hashing appliance is related to anonymized patient medical records clustered under the unique patient identifier by: generating a comparison vector by comparing the hash values corresponding to the confidential PHI in the newly received anonymized patient medical record with corresponding hash values of the anonymized patient medical records clustered under the unique patient identifier; providing a confidence vector that defines a two- dimensional matrix of elements, wherein: each row in the two-dimensional matrix is associated with one field of possible fields of an anonymized patient medical record, a first column of the two-dimensional matrix lists elements to be selected when a value of a field of the newly received anonymized patient medical record matches a value of a corresponding field in a cluster of anonymized patient medical records, a second column of the two-dimensional matrix lists elements to be selected when the value of a field of the newly received anonymized patient medical record does not match any values of a corresponding field in a cluster of anonymized patient medical records, and a third column of the two-dimensional matrix lists elements to be selected when the value of a field of the newly received anonymized patient medical record is not provided; selecting elements of the confidence vector based on the comparison vector; multiplying the selected elements together to thereby obtain a match confidence level, wherein the match confidence increases with an increase in a magnitude of the match confidence level; Appeal 2018-004059 Application 14/092,168 4 comparing the match confidence level to a predetermined threshold; and clustering the newly received anonymized patient medical record to the unique patient identifier if the confidence level is greater than the predetermined threshold. Rejections The Examiner rejects claims 1–20 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. Final Act. 6–10. The Examiner rejects claims 1–20 under 35 U.S.C. § 112(b) as being indefinite. Final Act. 11–19. The Examiner rejects claims 1–20 under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Final Act. 2–5. 35 U.S.C. § 112(A) In rejecting claim 1 as failing to comply with the written description requirement, the Examiner finds that the recitation of a “‘confidence vector that defines a two-dimensional matrix of elements’ is not described in the specification.” Final Act. 6. Specifically, the Examiner finds that although the Specification “depicts the confidence vector with elements designated by subscripts,” it nonetheless “fails to provide any description of the actual numerical values represented by these elements or how they might be generated.” Id. at 7 (citing Spec. Fig. 3B); see also id. at 7–8 (further citing Spec. Fig. 3A, ¶¶ 6, 54, 56); Ans. 3–5. Therefore, the Examiner concludes “the specification does not provide a disclosure of the computer and algorithm in sufficient detail to demonstrate to one of ordinary skill in the art that the inventor possessed the invention including how to program the disclosed computer to perform the claimed function.” Final Act. 8. Appeal 2018-004059 Application 14/092,168 5 Appellant contends the Examiner erred because claim 1 does not “recite limitations related to the generation of the elements” of the confidence vector. Br. 10 (emphasis added). Appellant further argues that the “specification does, in fact, disclose certain methodologies for selecting the elements.” Id. (citing Spec. ¶ 56). We agree with Appellant the Examiner erred. The actual values of the confidence vector selected or generated would affect the performance of the claimed invention in practice, and the actual values would depend on factors such as the confidential protected health information and the predetermined threshold selected. But we agree with Appellant that there is sufficient evidence that the inventors had possession of providing a confidence vector—loading values for purposes of performing the claimed algorithm. Confidence vector values could be selected or generated through one of the processes disclosed in the Specification, which discloses both automatable methods (e.g., relying on historical statistics) and manual methods (e.g., tuning calculated values). See Spec. ¶ 56. Or the values could be generated in a manner not explicitly disclosed (e.g., using intuition or experience to select numbers that would express how much weight to give to different match conditions, such as a missing gender field versus a non- matching gender field). Id. The values could even be randomly generated, in which case the algorithm disclosed would still execute in the recited manner (with suboptimal results likely). However the values of the confidence vector are generated, the claim only recites providing or loading the confidence vector, which means that particular techniques used to generate the values of the confidence vector fall outside the scope of the claimed invention. Therefore, the Examiner’s Appeal 2018-004059 Application 14/092,168 6 finding that the Specification “does not describe any of the elements which are included in the confidence vector” (Final Act. 7) fails to show that the Specification provides insufficient written description support for the claimed invention. Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 112(a) rejection of claim 1, and claims 2–20, which the Examiner similarly rejects. Id. at 9–10. 35 U.S.C. § 112(B) The Examiner’s findings regarding written description support for claim 1 are, for the reasons discussed above, similarly unpersuasive with respect to the Examiner’s rejection of claim 1 under 35 U.S.C. § 112(b) as being indefinite. See Final Act. 11–14. The Examiner, however, sets forth an entire series of alternative findings, based on other recitations in claims 1–20, to support the rejection of the claims under 35 U.S.C. § 112(b). Id. at 14–18. As the Examiner correctly notes, Appellant fails to address these alternative findings. See Ans. 5; Br. 10–11. Not only does Appellant fail to raise any issues in the Appeal Brief with respect to these findings, Appellant also fails to file a Reply Brief. The Examiner’s alternative findings of indefiniteness are reasonable and unrebutted. Final Act. 14–18. Accordingly, we sustain the Examiner’s 35 U.S.C. § 112(b) rejection of claims 1–20. 35 U.S.C. § 101 Principles of law To be statutorily patentable, the subject matter of an invention must be a “new and useful process, machine, manufacture, or composition of matter, or [a] new and useful improvement thereof.” 35 U.S.C. § 101. There are Appeal 2018-004059 Application 14/092,168 7 implicit exceptions to the categories of patentable subject matter identified in § 101, including: (1) laws of nature; (2) natural phenomena; and (3) abstract ideas. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). The Supreme Court has set forth a framework for distinguishing patents with claims directed to these implicit exceptions “from those that claim patent- eligible applications of those concepts.” Id. at 217 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012)). The evaluation follows a two-part analysis: (1) determine whether the claim is directed to a patent-ineligible concept, e.g., an abstract idea; and (2) if so, then determine whether any element, or combination of elements, in the claim is sufficient to ensure that the claim amounts to significantly more than the patent-ineligible concept itself. See id. at 217–18. “[A]ll inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Mayo, 566 U.S. at 71. We “‘must be careful to avoid oversimplifying the claims’ by looking at them generally and failing to account for the specific requirements of the claims.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1313 (Fed. Cir. 2016) (quoting In re TLI Commc’ns LLC Pat. Litig., 823 F.3d 607, 611 (Fed. Cir. 2016)). The U.S. Patent and Trademark Office (USPTO) recently published revised guidance on the application of the two-part analysis. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019) (“Memorandum”). Under that guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods Appeal 2018-004059 Application 14/092,168 8 of organizing human activity such as a fundamental economic practice, or mental processes) (see id. at 54 (step 2A, prong one)); and (2) additional elements that integrate the judicial exception into a practical application (see id. at 54–55 (step 2A, prong two); MPEP §§ 2106.05(a)–(c), (e)–(h)). See Memorandum, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look 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. at 56. Memorandum step 2A, prong one In rejecting claim 1 as being directed to patent-ineligible subject matter, the Examiner determines that claim 1’s recited “steps of anonymizing and aggregating health information are directed to collecting information,” “analyzing” collected information, “and displaying certain results of the collection and analysis.” Final Act. 3. The Examiner—noting the use of techniques such as salting and hashing, crossing vectors, and making a comparison—further determines claim 1 is “directed to an abstract idea amounting to mathematical relationships and/or formulas to anonymize Appeal 2018-004059 Application 14/092,168 9 records . . . and determine whether to map a record to records clustered under a unique identifier.” Id. at 3–4. Appellant contends the Examiner erred because the claimed invention solves “the technical problem . . . [of] the inability to gather information regarding a patient from any one existing system in a secure manner” by “anonymiz[ing] and then aggregat[ing] the data from various disparate systems to build a more complete picture of information regarding the patient.” Br. 13. Appellant’s arguments are unpersuasive under step 2A, prong one, of the Memorandum because claim 1 recites concealing who medical records pertain to and identifying medical records that are likely to relate to the same subject. This limited sharing of information and aggregation of related information based on what is shared represents a method of managing interactions between people (e.g., between medical professionals creating medical records and researchers relying on aggregated anonymized medical records), which is a certain method of organizing human activity. See, e.g., In re Salwan, 681 F. App’x 938, 941 (Fed. Cir. 2017), cert. denied sub nom. Salwan v. Matal, 138 S. Ct. 278 (2017), reh’g denied, 138 S. Ct. 496 (2017) (claim reciting “storing, communicating, transferring, and reporting patient health information in a network . . . [described] little more than the automation of a ‘method of organizing human activity’ with respect to medical information”); Memorandum, 84 Fed. Reg. at 52; Subject Matter Eligibility Examples: Abstract Ideas, USPTO, 17–20, available at https://www.uspto.gov/sites/default/files/documents/101_examples_37to42_ 20190107.pdf (Jan. 7, 2019) (claims reciting “a network-based patient management method that collects, converts and consolidates patient Appeal 2018-004059 Application 14/092,168 10 information from various physicians and health-care providers” recite methods of organizing human activity). Because claim 1 recites a certain method of organizing human activity, claim 1 recites an abstract idea. Memorandum step 2A, prong two Appellant further argues that claim 1 “requires specific components such as hashing appliances to replace data elements in patient medical records with hashed versions of the data elements” and “unique logic for correlating patient medical records from different sources to one another such as a unique confidence vector of matrix elements.” Br. 14. The Examiner, in response, finds “Appellant’s contribution to what is well- understood, routine, and conventional is not the basic approach to anonymization and clustering, but instead to the particular mathematical approach which is employed as part of this analysis and considered as part of 2A of the [Alice/Mayo] analysis.” Ans. 6. The Examiner’s analysis is unpersuasive. Claim 1 recites the use of salted hash values for protected health information—salted hash values that are used to generate a comparison vector that is used to select elements of a confidence vector for multiplication to obtain a match confidence level. These recitations set forth limited rules structured to reflect a specific implementation. The Examiner’s findings do not demonstrate that this specific implementation is one that health care providers or researchers engaged in the anonymization of medical records and the aggregation of anonymized medical records would likely have used. McRO, 837 F.3d at 1316. Appeal 2018-004059 Application 14/092,168 11 The Examiner also broadly characterizes these steps as merely analyzing collected information. See Final Act. 3 (citing Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016)). The Examiner does not show, however, that the claimed steps are ones “people go through in their minds, or by mathematical algorithms, without more.” Elec. Power Grp., 830 F.3d at 1354. We further note that the Examiner’s findings fail to show, and it is not apparent from the record, that the additional elements of claim 1: (1) merely recite applying a judicial exception; (2) “merely includes instructions to implement an abstract idea on a computer”; (3) merely use “a computer as a tool to perform an abstract idea”; (4) merely add insignificant post-solution activities; or (5) do “no more than generally link the use of a judicial exception to a particular technological environment or field of use.” Memorandum, 84 Fed. Reg. at 55. For these reasons, we conclude that claim 1 merely recites, but is not directed to, an abstract idea. Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 101 rejection of claim 1, or claims 2–20, which are similarly rejected. Final Act. 2–5. Because our analysis under step 2A, prong two, of the Memorandum is dispositive, we do not reach step 2B of the Memorandum. Appeal 2018-004059 Application 14/092,168 12 DECISION We do not sustain the Examiner’s decision rejecting claims 1–20 under 35 U.S.C. § 112(a). We sustain the Examiner’s decision rejecting claims 1–20 under 35 U.S.C. § 112(b). We do not sustain the Examiner’s decision rejecting claims 1–20 under 35 U.S.C. § 101. Because we sustain at least one rejection of each claim, we affirm the Examiner’s decision rejecting claims 1–20. 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. § 41.50(f). 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