Daniel L. Cosentino et al.

Patent Trials and Appeals Board

Dec 3, 2019

14514850 - (D) (P.T.A.B. Dec. 3, 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.
14/514,850 10/15/2014 Daniel L. COSENTINO C00007004USU2/
LG10574.082
8466
118252 7590 12/03/2019
Medtronic, Inc.
710 Medtronic Parkway
MS LC340
Minneapolis, MN 55432
EXAMINER
MOSELEY, GREGORY D
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
12/03/2019 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):
rs.patents.three@medtronic.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANIEL L. COSENTINO and BRIAN A. GOLDEN
____________

Appeal 2018-006712
Application 14/514,850
Technology Center 3600
____________

Before ROBERT E. NAPPI, STEVEN M. AMUNDSON, and
MICHAEL T. CYGAN, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–3, 5, 7–15, and 17–23, i.e., all pending claims. 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 (2017). Appellant identifies the real party in interest
as Medtronic, Inc. Appeal Br. 3.
Appeal 2018-006712
Application 14/514,850

2
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns “systems and
methods for ensuring the accuracy of health related information” by
“receiving, processing, analyzing, and verifying the accuracy of healthcare
data prior to its transmission to a client.” Spec. ¶ 14, Abstract.2 The
Specification explains that “[d]evices used to gather patient data may have
[an] inaccurate or incorrect date and time at the time a measurement is
taken” and that “[m]any different problems may occur if such date and time
settings are inaccurate.” Id. ¶ 3. The Specification also explains that “if
inaccurate patient information is included with accurate information” in a
graphical display of patient data, “the display can be difficult or impossible
for the viewer to interpret correctly,” e.g., to discern trends in the data. Id.
Hence, the invention endeavors to ensure the “accuracy of one or more
patient readings from one or more patient monitoring devices” by analyzing
received data “for accuracy based on one or more comparison analyses of
the time and date settings.” Id. ¶ 4.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows:

2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed October 15, 2014; “Final Act.” for the Final Office
Action, mailed September 28, 2017; “Advisory Act.” for the Advisory
Action, mailed December 13, 2017; “Appeal Br.” for the Appeal Brief, filed
February 20, 2018; “Ans.” for the Examiner’s Answer, mailed April 19,
2018; and “Reply Br.” for the Reply Brief, filed June 15, 2018.
Appeal 2018-006712
Application 14/514,850

3
1. A method for processing patient data, the method
comprising:
(a) updating a time of a clock of a patient monitoring
apparatus to an updated time corresponding to a time of an
accuracy testing server;
(b) storing the updated time of the patient monitoring
apparatus;
(c) receiving patient data from the patient monitoring
apparatus, the patient data containing a set of patient readings
and a set of sampling times, the set of sampling times indicating
a [sic] measurement times for the set of patient readings data;
(d) comparing the set of sampling times to the stored
updated time;
(e) comparing the set of sampling times to a current
time stamp of the accuracy testing server; and
(f) assigning, in response to the comparisons indicating
that at least a first portion of the set of sampling times is not
between the stored updated time and the system time, an
accuracy assessment value indicating a low likelihood of
accuracy for a portion of the patient data corresponding to
the first portion of the set of sampling times.
Appeal Br. 13 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability under 35 U.S.C. § 103, the Examiner
relies on the following prior art:
Ray et al. (“Ray”) US 2008/0194934 A1 Aug. 14, 2008
Khanuja et al. (“Khanuja”) US 2009/0118596 A1 May 7, 2009
Johnson et al. (“Johnson”) US 2010/0188938 A1 July 29, 2010
Sloan US 8,771,183 B2 July 8, 2014
Appeal 2018-006712
Application 14/514,850

4
The Rejections on Appeal
Claims 5 and 17 stand rejected under 35 U.S.C. § 112(a) for failing to
comply with the written-description requirement. Final Act. 2–3.
Claims 2, 5, 12, 14, and 17 stand rejected under 35 U.S.C. § 112(b) as
indefinite for failing to particularly point out and distinctly claim the subject
matter regarded as the invention. Final Act. 4–5.
Claims 1–3, 5, 7–15, and 17–23 stand rejected under 35 U.S.C. § 101
as directed to patent-ineligible subject matter. Final Act. 5–8.
Claims 1–3, 5, 8, 10–15, 17, 19, 21, and 23 stand rejected under
35 U.S.C. § 103 as unpatentable over Johnson and Ray. Final Act. 9–24.
Claims 7, 18, and 22 stand rejected under 35 U.S.C. § 103 as
unpatentable over Johnson, Ray, and Sloan. Final Act. 24–26.
Claims 9 and 20 stand rejected under 35 U.S.C. § 103 as unpatentable
over Johnson, Ray, and Khanuja. Final Act. 26–27.
ANALYSIS
We have reviewed the rejections in light of Appellant’s arguments
that the Examiner erred. For the reasons explained below, we concur with
the Examiner’s conclusions concerning ineligibility under § 101 and
indefiniteness under § 112(b). But we disagree with the Examiner’s
determinations under § 103 and § 112(a). We adopt the Examiner’s findings
and reasoning regarding ineligibility and indefiniteness in the Final Office
Action, Advisory Action, and Answer. See Final Act. 4–8; Advisory Act.
2–3; Ans. 3–6, 9–10. We provide the following to address and emphasize
specific findings and arguments.
Appeal 2018-006712
Application 14/514,850

5
The § 112(a) Rejection of Claims 5 and 17
INTRODUCTION
Section 112’s first paragraph requires, among other things, that the
specification “contain a written description of the invention.” 35 U.S.C.
§ 112(a). The written-description requirement serves to “clearly allow
persons of ordinary skill in the art to recognize that [the inventor] invented
what is claimed.” Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
1351 (Fed. Cir. 2010) (en banc) (alteration in original) (quoting Vas-Cath,
Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)); see Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016). “[T]he test for
sufficiency is whether the disclosure of the application relied upon
reasonably conveys to those skilled in the art that the inventor had
possession of the claimed subject matter as of the filing date.” Ariad,
598 F.3d at 1351; Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275,
1296 (Fed. Cir. 2017). The “test requires an objective inquiry into the four
corners of the specification from the perspective of a person of ordinary skill
in the art.” Ariad, 598 F.3d at 1351. The written-description requirement
does not, however, “demand any particular form of disclosure” or require
that “the specification recite the claimed invention in haec verba.” Id.
at 1352. The analysis for disclosure sufficiency may consider “such
descriptive means as words, structures, figures, diagrams, formulas, etc.”
Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997).
THE CLAIMS AT ISSUE AND SPECIFICATION SUPPORT
Claim 5 depends from claim 2. Claims 2 and 5 read as follows:
Appeal 2018-006712
Application 14/514,850

6
2. The method of claim 1, further comprising:
receiving from the patient monitoring apparatus a current
time of the clock of the remote patient monitoring apparatus;
determining a difference between the current time of the
clock of the remote patient monitoring apparatus and the
current time stamp of the accuracy testing server; and
assigning, in response to the difference being greater than
a tolerance, an accuracy assessment value indicating a medium
likelihood of accuracy to the patient data.
5. The method of claim 2, wherein the tolerance is less than
or equal to five seconds and greater than or equal to one second.
Appeal Br. 13–14 (Claims App.). Claim 17 depends from claim 14.
Claim 14 recites the same limitations as claim 2. Claim 17 recites the same
limitation as claim 5.
The Specification explains that a system operator may specify an
“acceptable tolerance” as “a range of times around the reference time.”
Spec. ¶ 68. It discloses an example symmetric tolerance, saying, “For
example, it can be set that the patient monitoring apparatus date and time
must be within 0.5 seconds of the reference date and time to be considered
highly accurate.” Id. It also discloses an example asymmetric tolerance,
saying, “In addition, a tolerance range needs not be symmetrical around the
reference time, e.g., the tolerance range may be between 5 seconds before
the reference date/time and 1 second after the reference date/time.” Id.
DISCUSSION
The Examiner determines that the Specification “teaches a tolerance
range, but the widest tolerance range described is from 5 seconds before the
reference time up to one second after the reference time.” Final Act. 3; see
Ans. 10–11. The Examiner explains that “any singular tolerance value given
Appeal 2018-006712
Application 14/514,850

7
over one second is not supported because the specification does not have
support for a tolerance range that includes measured time values greater than
one second after the reference time.” Final Act. 3; see Advisory Act. 2.
In response, Appellant asserts that the Specification “teaches that
there are multiple examples for how to implement tolerance values as a
range around the reference time,” including symmetric and asymmetric
examples. Appeal Br. 11; see Reply Br. 7. Appellant contends that “[t]he
tolerance values of five seconds and one second are discussed as an example
of an asymmetric example.” Appeal Br. 11. Appellant also contends that
those skilled in the art “would have recognized that the example tolerance
values would apply to either of the similar examples.” Id.
We agree with Appellant that the Specification reasonably conveys to
those skilled in the art that the inventors had possession of the claimed
tolerance ranges as of the filing date. While the Specification does not
provide range endpoints corresponding precisely to claimed endpoints,
precise correspondence is not required. See Ralston Purina Co. v. Far-Mar-
Co, Inc., 772 F.2d 1570, 1575 (Fed. Cir. 1985). The Specification discloses
symmetric and asymmetric tolerance ranges. Spec. ¶ 68. Further, the
Specification discloses the following asymmetric tolerance range: “between
5 seconds before the reference date/time and 1 second after the reference
date/time.” Id. The Specification identifies that asymmetric tolerance as an
example. Id.
Thus, the Specification demonstrates that the inventors contemplated
a maximum deviation from the reference date/time between 1 second and
5 seconds as well as symmetric deviations, e.g., a deviation from the
reference date/time of plus or minus 5 seconds. Accordingly, we determine
Appeal 2018-006712
Application 14/514,850

8
that the Specification reasonably conveys to those skilled in the art the
claimed tolerance range with endpoints between 1 second and 5 seconds.
Hence, we do not sustain the § 112(a) rejection of claims 5 and 17.
The § 112(b) Rejection of Claims 2, 5, 12, 14, and 17
INTRODUCTION
Section 112’s second paragraph requires that the specification
“conclude with one or more claims particularly pointing out and distinctly
claiming the subject matter which the inventor or a joint inventor regards as
the invention.” 35 U.S.C. § 112(b). The definiteness requirement “strikes a
‘delicate balance’ between ‘the inherent limitations of language’ and
providing ‘clear notice of what is claimed.’” Sonix Tech. Co. v. Publ’ns
Int’l, Ltd., 844 F.3d 1370, 1377 (Fed. Cir. 2017) (quoting Nautilus, Inc. v.
Biosig Instruments, Inc., 572 U.S. 898, 909 (2014)).
Due to the need for “particular[ity]” and “distinct[ness],” claim
language that “is ambiguous, vague, incoherent, opaque, or otherwise
unclear in describing and defining the claimed invention” warrants a
rejection under § 112(b). In re Packard, 751 F.3d 1307, 1311, 1313
(Fed. Cir. 2014); see Ex parte McAward, Appeal 2015-006416, 2017 WL
3669566, at *5 (PTAB Aug. 25, 2017) (precedential); see also In re
Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994) (explaining that “[t]he
legal standard for definiteness is whether a claim reasonably apprises those
of skill in the art of its scope”); In re Moore, 439 F.2d 1232, 1235
(CCPA 1971) (requiring “a reasonable degree of precision and particularity”
in claims).
Appeal 2018-006712
Application 14/514,850

9
THE CLAIMS AT ISSUE
Claims 2, 12, and 14 depend from claims 1, 11, and 13, respectively,
and include the following limitation: “assigning, in response to the
difference being greater than a tolerance, an accuracy assessment value
indicating a medium likelihood of accuracy to the patient data.” Claims 5
and 17 depend from claims 2 and 14, respectively, and specify tolerance
ranges.
DISCUSSION
The Examiner determines that (1) comparisons according to claims 1,
11, and 13 may produce “an accuracy assessment value” indicating “a low
likelihood of accuracy” and (2) comparisons according to claims 2, 12,
and 14 may produce “an accuracy assessment value” indicating “a medium
likelihood of accuracy.” Final Act. 4. The Examiner explains that
“[b]ecause the two [values] are labeled the same as ‘an accuracy assessment
value’ rather than ‘a first accuracy assessment value’ and ‘a second accuracy
assessment value’, it logically follows that the two would be referring to one
accuracy assessment value.” Ans. 9. The Examiner concludes that “[i]t is
not clear upon reading the claims that the time [data] can carry more than
one accuracy assessment value[] because generally, ‘low’, ‘medium’, and
‘high’ are discrete, mutually exclusive groups.” Id. at 9–10. The Examiner
also concludes that “[w]ithout some language that clearly sets forth that a
time stamp can carry more than one accuracy assessment value or that the
accuracy assessment values are distinct from each other, there is a lack of
clarity that renders the metes and the bounds of the claims indefinite.” Id.
at 10.
Appeal 2018-006712
Application 14/514,850

10
In response, Appellant asserts that the claims encompass “assigning
multiple levels of accuracy,” i.e., “both low and medium” accuracy to the
same data. Appeal Br. 10. Appellant also asserts that to the extent the
claims encompass “the situation where there are two accuracy assessment
values assigned to the data, each with a different likelihood of accuracy,”
that “goes to the breadth of the claims rather than to their validity.” Reply
Br. 7.
We agree with the Examiner that claims 2, 12, and 14 lack clarity
because the claim language does not indicate that the time data “can carry
more than one accuracy assessment value.” Hence, a conflict occurs when
the same data receives “an accuracy assessment value” indicating both
(1) “a low likelihood of accuracy” according to claims 1, 11, and 13 and
(2) “a medium likelihood of accuracy” according to claims 2, 12, and 14.
The claims fail to specify a way to resolve that conflict.
Although Appellant contends that the Specification “teaches that there
can be multiple tests and associated assessments with different values,”
Appellant concedes that “[t]hese values may ultimately be combined.”
Appeal Br. 10 (citing Spec. ¶ 55). Combining two different assessment
values does not correspond to carrying two different assessment values.
According to the Specification, there is only one ultimate accuracy
assessment value. See, e.g., Spec. ¶¶ 15, 18, 24, 42–45, 54–55, 57, 73–74,
81, Figs. 4–5. As an example, the Specification explains that based on two
different tests:
a combination of high chance of device accuracy and high
chance of initial accuracy may be assigned the highest
accuracy, a combination of low chance of device accuracy and
high chance of initial accuracy may be assigned high accuracy,
Appeal 2018-006712
Application 14/514,850

11
a combination of high chance of device accuracy and low
chance of initial accuracy may be assigned low accuracy, and a
combination of low chance of device accuracy and low chance
of initial accuracy may be assigned lowest accuracy.
Id. ¶ 55; see id. ¶ 44. As another example, the Specification explains that
“the probability of accuracy may be a score ranging from a maximum of 10
(indicating a likelihood that the measurement or readings is highly accurate)
to a minimum of 1 (indicating that the measurement is, in all likelihood, is
[sic] very inaccurate).” Id. ¶ 81; see id. ¶¶ 55, 57.
Viewed in light of the Specification, claims 2, 12, and 14 do not
reasonably apprise those skilled in the art of their scope. Hence, we sustain
the § 112(b) rejection of claims 2, 12, and 14. We also sustain the § 112(b)
rejection of claims 5 and 17 because they fail to clarify the respective base
claims.3
The § 101 Rejection of Claims 1–3, 5, 7–15, and 17–23
INTRODUCTION
The Patent Act defines patent-eligible subject matter broadly:
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. In Mayo and Alice, the
Supreme Court explained that § 101 “contains an important implicit
exception” for laws of nature, natural phenomena, and abstract ideas. Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012);

3 In the event of continued prosecution, the Examiner should consider the
propriety of a rejection under 35 U.S.C. § 112(b) for claims 1, 11, and 13
based on a lack of antecedent basis for the phrase “the system time.”
Appeal 2018-006712
Application 14/514,850

12
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014); see Diamond v.
Diehr, 450 U.S. 175, 185 (1981). In Mayo and Alice, the Court set forth a
two-step analytical framework for evaluating patent-eligible subject matter.
Mayo, 566 U.S. at 77–80; Alice, 573 U.S. at 217–18.
Under Mayo/Alice step one, we “determine whether the claims at
issue are directed to” a judicial exception, i.e., an abstract idea, a law of
nature, or a natural phenomenon. Alice, 573 U.S. at 217. Step one involves
looking at the “focus” of the claims at issue and their “character as a whole.”
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018).
In January 2019, the PTO issued revised guidance for determining
whether claims are directed to a judicial exception. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019
Guidance”). The 2019 Guidance applies to the Board. Id. at 50–51, 57 n.42;
see 35 U.S.C. § 3(a)(2)(A) (investing the Director with responsibility “for
providing policy direction” for the PTO). Neither the Examiner nor
Appellant had the benefit of the 2019 Guidance when presenting their
respective positions concerning subject-matter eligibility.
The 2019 Guidance specifies two prongs for the analysis under
Mayo/Alice step one (PTO step 2A). 84 Fed. Reg. at 54–55. Prong one
requires evaluating “whether the claim recites a judicial exception, i.e., an
abstract idea, a law of nature, or a natural phenomenon.” Id. at 54. “If the
claim does not recite a judicial exception, it is not directed to a judicial
exception,” and it satisfies § 101. Id. “If the claim does recite a judicial
exception, then it requires further analysis” under prong two. Id. Prong two
requires evaluating “whether the claim as a whole integrates the recited
judicial exception into a practical application of the exception.” Id. “When
Appeal 2018-006712
Application 14/514,850

13
the exception is so integrated, then the claim is not directed to a judicial
exception,” and it satisfies § 101. Id. “If the additional elements do not
integrate the exception into a practical application, then the claim is directed
to the judicial exception,” and it “requires further analysis” under
Mayo/Alice step two (PTO step 2B). Id.
Under Mayo/Alice step two, we “consider the elements of each claim
both individually and ‘as an ordered combination’ to determine whether the
additional elements” add enough to transform the “nature of the claim” into
“significantly more” than the judicial exception. Alice, 573 U.S. at 217–18,
221–22 (quoting Mayo, 566 U.S. at 78–79). Step two involves the search for
an “inventive concept.” Alice, 573 U.S. at 217–18, 221; Univ. of Fla.
Research Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1366 (Fed.
Cir. 2019). “[A]n inventive concept must be evident in the claims.”
RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017).
MAYO/ALICE STEP ONE: PTO STEP 2A PRONG ONE
For Mayo/Alice step one, the Federal Circuit has noted that “[a]n
abstract idea can generally be described at different levels of abstraction.”
Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). Here,
the Examiner determines that the claims are directed to the abstract idea of
“determining the accuracy of a clock on a remote monitoring apparatus.”
Final Act. 5 (emphasis omitted); see Ans. 5–6. The Examiner analogizes the
abstract idea to “the concept of ‘collecting and comparing known
information’, which was determined to be a patent-ineligible abstract idea by
the Federal Circuit” in Classen. Final Act. 5 (citing Classen
Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir. 2011)); see
Advisory Act. 2; Ans. 4–5.
Appeal 2018-006712
Application 14/514,850

14
Appellant disputes that the independent claims are directed to an
abstract idea. See Appeal Br. 5–8; Reply Br. 3–6. Specifically, Appellant
asserts that the Examiner “has broadly characterized the claimed invention
in a manner that does not address the claimed solution.” Appeal Br. 5; see
id. at 7; Reply Br. 4.
We disagree. In determining that the claims are directed to an abstract
idea, the Examiner accurately assesses the “focus” of the claims and their
“character as a whole.” See Final Act. 5–7; Advisory Act. 2–3; Ans. 3–6;
see also SAP Am., 898 F.3d at 1167.
In addition, we determine that the claims recite abstract ideas falling
within one of the three groupings of abstract ideas specified in the 2019
Guidance, i.e., “mental processes.” See 84 Fed. Reg. at 51–52. The 2019
Guidance describes “mental processes” as “concepts performed in the
human mind,” such as “an observation, evaluation, judgment, [or] opinion.”
Id. at 52 (footnote omitted). As explained below, each independent claim
recites “mental processes” in various limitations. See Final Act. 28; Ans. 3.
For instance, claims 1 and 13 recite the following limitations:
● “comparing the set of sampling times to the stored
updated time”;
● “comparing the set of sampling times to a current time
stamp of the accuracy testing server”; and
● “assigning, in response to the comparisons indicating that
at least a first portion of the set of sampling times is not
between the stored updated time and the system time, an
accuracy assessment value indicating a low likelihood of
accuracy for a portion of the patient data corresponding
to the first portion of the set of sampling times.”
Appeal 2018-006712
Application 14/514,850

15
Appeal Br. 13, 15. Claim 11 recites similar limitations. Id. at 14–15. As
discussed in more detail below, the above-identified limitations encompass
evaluations performed by a human mentally or with pen and paper.
The Specification explains that the invention endeavors to ensure
the “accuracy of one or more patient readings from one or more patient
monitoring devices.” Spec. ¶ 4. Further, the Specification describes
determining the accuracy of “one or more of the readings” by making “one
or more comparisons.” Id. ¶ 54; see id. ¶ 52.
Hence, after gathering time data, a person could mentally compare a
sampling time to a stored updated time. Based on that mental comparison,
the person could mentally discern whether the sampling time precedes or
follows the stored updated time. In addition, the person could mentally
compare the sampling time to a current time stamp. Based on that mental
comparison, the person could mentally discern whether the sampling time
precedes or follows the current time stamp. And if appropriate based on
those mental comparisons, the person could with pen and paper assign “an
accuracy assessment value” indicating “a low likelihood of accuracy.”
For these reasons, the above-identified limitations encompass
evaluations performed by a human mentally or with pen and paper. The
2019 Guidance identifies an evaluation performed by a human mentally or
with pen and paper as a mental process, and thus an abstract idea. 84 Fed.
Reg. at 52 & nn.14–15; see also Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“Symantec”) (“[W]ith the
exception of generic computer-implemented steps, there is nothing in the
claims themselves that foreclose them from being performed by a human,
mentally or with pen and paper.”).
Appeal 2018-006712
Application 14/514,850

16
Appellant disagrees that the claims recite mental processes. See
Reply Br. 5–6. Appellant asserts that “[a] similar argument was raised in the
dissenting opinion of DDR but was ultimately not adopted.” Id. at 5 (citing
DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014)).
Appellant then urges that “[t]he Examiner’s argument here should also not
be adopted.” Id.
Appellant wrongly relies on DDR Holdings. See Ans. 3. There, the
Federal Circuit determined that certain claims satisfied § 101 under
Mayo/Alice step two because “the claimed solution amount[ed] to an
inventive concept for resolving [a] particular Internet-centric problem,” i.e.,
a challenge unique to the Internet. DDR Holdings, 773 F.3d at 1257–59; see
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016) (noting that “[i]n DDR Holdings, we held that claims ‘directed to
systems and methods of generating a composite web page that combines
certain visual elements of a “host” website with content of a third-party
merchant’ contained the requisite inventive concept”). The Federal Circuit
explained that the patent-eligible claims specified “how interactions with the
Internet are manipulated to yield a desired result . . . that overrides the
routine and conventional sequence of events ordinarily triggered by the click
of a hyperlink.” DDR Holdings, 773 F.3d at 1258. The court reasoned that
those claims recited a technological solution “necessarily rooted in computer
technology” that addressed a “problem specifically arising in the realm of
computer networks.” Id. at 1257.
According to the Federal Circuit, “DDR Holdings does not apply
when . . . the asserted claims do not ‘attempt to solve a challenge particular
to the Internet.’” Smart Sys. Innovations, LLC v. Chi. Transit Auth.,
Appeal 2018-006712
Application 14/514,850

17
873 F.3d 1364, 1375 (Fed. Cir. 2017) (quoting In re TLI Commc’ns LLC
Patent Litig., 823 F.3d 607, 613 (Fed. Cir. 2016)). The claims here do not
attempt to solve a challenge particular to the Internet. See Appeal Br.
13–15.
As discussed above, the Specification explains that the invention
endeavors to ensure the “accuracy of one or more patient readings from one
or more patient monitoring devices.” Spec. ¶ 4. Ensuring the accuracy of
patient readings does not constitute a challenge particular to the Internet.
See Ans. 3. In addition, the claims do not require a network. Hence, DDR
Holdings does not help Appellant.
MAYO/ALICE STEP ONE: PTO STEP 2A PRONG TWO
Because we determine that each independent claim recites abstract
ideas, we consider whether each claim as a whole integrates the recited
abstract ideas into a practical application. See 84 Fed. Reg. at 54–55. “Only
when a claim recites a judicial exception and fails to integrate the exception
into a practical application, is the claim ‘directed to’ a judicial exception
. . . .” Id. at 51.
As additional elements, claims 1, 11, and 13 recite the following
computer-system and hardware components: a “patient monitoring
apparatus” and an “accuracy testing server.” Appeal Br. 13–15. Claim 11
assigns the “accuracy testing server” to a “central processing unit.” Id.
at 14.
Further, claims 1 and 13 recite the following data-collecting
limitations:
● “updating a time of a clock of a patient monitoring
apparatus to an updated time corresponding to a time
of an accuracy testing server”;
Appeal 2018-006712
Application 14/514,850

18
● “storing the updated time of the patient monitoring
apparatus”; and
● “receiving patient data from the patient monitoring
apparatus, the patient data containing a set of patient
readings and a set of sampling times, the set of sampling
times indicating a [sic] measurement times for the set of
patient readings data.”
Appeal Br. 13, 15; see Final Act. 6. Claim 11 recites similar limitations.
Appeal Br. 14.
We determine that each independent claim as a whole does not
integrate the recited abstract ideas into a practical application because the
additional elements do not impose meaningful limits on the abstract ideas.
See 84 Fed. Reg. at 53–54. The claimed computer-system and hardware
components constitute generic components that perform generic functions.
See Final Act. 7–8; Spec. ¶¶ 18, 20–22, 25–27, 30, 38–39, 66, 71–72.
Further, the data-collecting limitations constitute insignificant extra-solution
activity. See, e.g., Mayo, 566 U.S. at 79; OIP Techs., Inc. v. Amazon.com,
Inc., 788 F.3d 1359, 1363–64 (Fed. Cir. 2015); Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 716 (Fed. Cir. 2014); CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1370 (Fed. Cir. 2011); In re Grams,
888 F.2d 835, 839–40 (Fed. Cir. 1989).
As an example of insignificant extra-solution activity, in Mayo the
Supreme Court decided that measuring metabolite levels for later analysis
constituted purely “conventional or obvious” pre-solution activity. Mayo,
566 U.S. at 79. Similarly, the Federal Circuit has held that mere data-
gathering steps “cannot make an otherwise nonstatutory claim statutory.”
CyberSource, 654 F.3d at 1370 (quoting Grams, 888 F.2d at 840); see
Solutran, Inc. v. Elavon, Inc., 931 F.3d 1161, 1169 (Fed. Cir. 2019). The
Appeal 2018-006712
Application 14/514,850

19
Federal Circuit has also held that (1) presenting offers to potential customers
and (2) gathering statistics concerning customer responses were
“conventional data-gathering activities that d[id] not make the claims patent
eligible.” OIP Techs., 788 F.3d at 1363–64. Consistent with those
decisions, the Manual of Patent Examining Procedure (“MPEP”) identifies
“gathering data” as an example of insignificant pre-solution activity. MPEP
§ 2106.05(g) (9th ed. rev. 08.2017 Jan. 2018).
Here, the data-collecting limitations amount to mere data-gathering
steps and require nothing unconventional or significant. See Classen,
659 F.3d at 1067 (analogizing “data gathering” to “insignificant extra-
solution activity”). Hence, the data-collecting limitations do not help
integrate the recited abstract ideas into a practical application.
According to Appellant, “computerized patient monitoring systems
. . . had long-standing issues with inaccurate data relative to the time stamps
for . . . patient readings (e.g., measurements such as weight or blood
pressure) that were taken by remote devices.” Appeal Br. 5. Appellant
contends that the “claimed invention addresses such issues by improving the
function of the computerized patient monitoring system through a specific
set of steps that define how each patient reading is first analyzed, and then
categorized for the users of the system.” Id. Appellant asserts that the
“claimed solution is not merely an abstract concept and instead includes a
concrete and specific technical improvement.” Id.
We disagree that the claims provide a concrete and specific technical
improvement. See Final Act. 8, 28; Advisory Act. 2; Ans. 4. The claimed
“patient monitoring apparatus” operates like any conventional “patient
Appeal 2018-006712
Application 14/514,850

20
monitoring apparatus” to supply data. See Final Act. 7 (quoting Spec. ¶ 21);
Spec. ¶¶ 21–22.
Instead of improving an apparatus, the claims categorize data, e.g., by
assigning “an accuracy assessment value” that may indicate “a low
likelihood of accuracy.” Appeal Br. 13–15; see Spec. ¶¶ 14, 18, 44, 55–56,
59–69, Abstract, Figs. 4–5. For example, the Specification explains that
“patient data, collected from various patient input devices,” may “be
automatically filtered or categorized into one of several categories” that “are
based on the potential accuracy of the data.” Spec. ¶ 14, Abstract.
According to the Specification, “[d]ata that surpasses accuracy testing may
then be transmitted to a client,” while “[d]ata that fails accuracy testing may
be discarded.” Id. ¶ 14, Abstract. The claims do not specify what happens
after categorizing data. Appeal Br. 13–15; see Final Act. 28. For instance,
the claims do not specify how a client uses “[d]ata that surpasses accuracy
testing.” Similarly, the claims do not specify how a computer system uses
categorized data.
Appellant argues that “the accuracy of the system is improved” and,
therefore, “the performance of the computer system is improved.” Appeal
Br. 6. As explained above, however, the claims do not specify what happens
after categorizing data or how a computer system uses categorized data so as
to link the claimed accuracy assessment to any purported improvement in
the system itself. Unclaimed improvements do not support patent eligibility.
See ChargePoint, Inc. v. SemaConnect, Inc., 920 F.3d 759, 769 (Fed. Cir.
2019); Berkheimer v. HP Inc., 881 F.3d 1360, 1369–70 (Fed. Cir. 2018);
Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329,
Appeal 2018-006712
Application 14/514,850

21
1338–39 (Fed. Cir. 2017); Intellectual Ventures I LLC v. Erie Indem. Co.,
850 F.3d 1315, 1331–32 (Fed. Cir. 2017).
Appellant asserts that the “claims improve upon the prior art system
by reducing the complexity of the remote devices.” Appeal Br. 6. We
disagree. Although the claims recite a “patient monitoring apparatus” and
an “accuracy testing server,” the claims specify no technical details about
those computer-system and hardware components. Id. at 13–15. Nothing in
the claims requires reducing the complexity of either component.
Based on BASCOM, Appellant contends that the claims “offer[] a
specific improvement over the prior art solutions.” Appeal Br. 6 (citing
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341,
1351 (Fed. Cir. 2016)). But BASCOM does not help Appellant.
In BASCOM, the claims recited a “specific method of filtering Internet
content” requiring “the installation of a filtering tool at a specific location,
remote from the end-users, with customizable filtering features specific to
each end user.” BASCOM, 827 F.3d at 1345–46, 1350. The Federal Circuit
decided that the claims satisfied § 101 under Mayo/Alice step two. Id.
at 1349–51. The court reasoned that the claims covered “a technology-based
solution . . . to filter content on the Internet that overcomes existing
problems with other Internet filtering systems” and “improve[s] an existing
technological process.” Id. at 1351 (citing Alice, 573 U.S. at 223); see Alice,
573 U.S. at 223 (explaining that “the claims in Diehr were patent eligible
because they improved an existing technological process”).
Unlike the claims in BASCOM, the claims here do not cover a
technology-based solution that improves an existing technological process.
See Final Act. 8, 28; Advisory Act. 2; Ans. 4. As the Examiner determines,
Appeal 2018-006712
Application 14/514,850

22
“[t]here is no indication that the combination of the elements improves the
functioning of a computer or improves any other technology.” Final Act. 8.
As the Examiner also determines, “[i]mproving data integrity is not a
technical problem” because “[d]ata integrity is a problem that has been in
existence as long as information has been recorded.” Advisory Act. 2.
Hence, the claims here do not resemble the claims in BASCOM.
The 2019 Guidance identifies exemplary considerations indicating
that additional elements in claims “may have integrated the [judicial]
exception into a practical application.” 84 Fed. Reg. at 55 & nn.25–29
(citing MPEP §§ 2106.05(a)–(c), 2106.05(e)). As the above analysis
indicates, we have evaluated Appellant’s arguments in light of those
exemplary considerations. For the reasons discussed above, however, we
determine that each independent claim as a whole does not integrate the
recited abstract ideas into a practical application. Thus, each claim is
directed to a judicial exception and does not satisfy § 101 under Mayo/Alice
step one.
MAYO/ALICE STEP TWO: PTO STEP 2B
Because we determine that each independent claim is directed to a
judicial exception, we “consider the elements of each claim both
individually and ‘as an ordered combination’ to determine whether the
additional elements” add enough to transform the “nature of the claim” into
“significantly more” than the judicial exception. See Alice, 573 U.S.
at 217–18, 221–22 (quoting Mayo, 566 U.S. at 78–79). Under Mayo/Alice
step two, we “look with more specificity at what the claim elements add, in
order to determine ‘whether they identify an “inventive concept” in the
application of the ineligible subject matter’ to which the claim is directed.”
Appeal 2018-006712
Application 14/514,850

23
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258
(Fed. Cir. 2016) (quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016)). An “inventive concept” requires more than
“well-understood, routine, conventional activity already engaged in” by the
relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d
1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79–80). But a
“non-conventional and non-generic arrangement of known, conventional
pieces” may provide an “inventive concept” satisfying step two. BASCOM,
827 F.3d at 1350.
The Examiner determines that “[t]he claims do not include additional
elements that are sufficient to amount to significantly more than the judicial
exception because the additional elements when considered both
individually and as an ordered combination do not amount to significantly
more than the abstract idea.” Final Act. 7. We agree with the Examiner.
As discussed above, claims 1, 11, and 13 recite computer-system and
hardware components, i.e., a “patient monitoring apparatus” and
an “accuracy testing server,” and claim 11 assigns the “accuracy testing
server” to a “central processing unit.” Appeal Br. 13–15. The Examiner
correctly finds that the claimed components constitute “conventional
components of a generic computer” that “perform[] generic computer
functions that are well-understood, routine and conventional activities,”
e.g., collecting, manipulating, and communicating data. Final Act. 7–8.
Consistent with the Examiner’s findings, the Specification describes
the claimed computer-system and hardware components generically and
evidences their conventional nature. See, e.g., Spec. ¶¶ 18, 20–22, 25–27,
30, 38–39, 66, 71–72. As an example, the Specification explains that a
Appeal 2018-006712
Application 14/514,850

24
“patient monitoring apparatus” includes (1) “any device capable of receiving
patient healthcare information” and (2) “any device capable of sensing
patient healthcare information, automatically or manually.” Id. ¶¶ 21–22;
see Final Act. 7 (quoting Spec. ¶ 21). As another example, the Specification
explains that an “accuracy testing system” may “be implemented as a
separate and discrete device, as a separate application or program executing
on the data, or as subroutines or sub programs within a larger processing
system or executing program on a computing device as a matter of design
choice.” Spec. ¶ 18. Also, the Specification states, “It is understood that the
system can be any system with a reference date and time.” Id. ¶¶ 66, 71–72.
Further, regarding a “central processing unit,” the Specification notes that a
“variety of processing devices are available from a variety of manufacturers,
for example, Intel® or Advanced Micro Devices.” Id. ¶ 26.
In addition, court decisions have recognized that generic computer-
system and hardware components operating to collect, manipulate, and
communicate data are well understood, routine, and conventional to a skilled
artisan. See, e.g., Alice, 573 U.S. at 226–27; SAP Am., 898 F.3d at 1164–65
& n.1, 1170; Symantec, 838 F.3d at 1316–20; Apple, 842 F.3d at 1234,
1241–42; Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1334
(Fed. Cir. 2015); Ultramercial, 772 F.3d at 715–16; buySAFE, Inc. v.
Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014).
For example, the system claims in Alice recited a “data processing
system” (e.g., “central processing unit”) with a “communications controller”
and a “data storage unit.” Alice, 573 U.S. at 226. The Supreme Court
decided that the system claims failed to satisfy § 101 because “[n]early
every computer” includes those generic components for performing “basic
Appeal 2018-006712
Application 14/514,850

25
calculation, storage, and transmission functions” and the system claims
simply implemented the same abstract idea as the method claims. Id.
at 226–27. The Court reasoned that (1) “the system claims are no different
from the method claims in substance”; (2) “[t]he method claims recite the
abstract idea implemented on a generic computer”; and (3) “the system
claims recite a handful of generic computer components configured to
implement the same idea.” Id. at 226.
Here, the claimed computer-system and hardware components
perform “basic calculation, storage, and transmission functions” that nearly
every computer performs. Appeal Br. 13–15. For instance, nearly every
computer includes a “central processing unit” for manipulating data. Hence,
those generic computer-system and hardware components do not satisfy the
“inventive concept” requirement. See, e.g., Mortg. Grader, Inc. v. First
Choice Loan Servs. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (holding
that “generic computer components such as an ‘interface,’ ‘network,’ and
‘database’” did not satisfy the “inventive concept” requirement);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095–96 (Fed. Cir.
2016) (describing the claimed “microprocessor” and “user interface” as
“generic computer elements”); Prism Techs. LLC v. T-Mobile USA, Inc., 696
F. App’x 1014, 1016–17 (Fed. Cir. 2017) (describing the claimed
“authentication server,” “access server,” “Internet Protocol network,” “client
computer device,” and “database” as “indisputably generic computer
components”).
We reach a similar conclusion concerning the data-collecting
limitations, e.g., “updating a time,” “storing the updated time,” and
“receiving patient data” in claims 1 and 13. As discussed above, the data-
Appeal 2018-006712
Application 14/514,850

26
collecting limitations amount to mere data-gathering steps and require
nothing unconventional or significant. Consequently, the claimed
insignificant extra-solution activity does not satisfy the “inventive concept”
requirement. See, e.g., Mayo, 566 U.S. at 79–80; OIP Techs., 788 F.3d at
1363–64; CyberSource, 654 F.3d at 1370.
Appellant contends that the claims “do not attempt to preempt every
application of the Examiner’s abstract idea” and “would not preempt other
solutions, such as those recited in the prior art.” Appeal Br. 6. Appellant
faults the Examiner because the Examiner’s analysis fails to include “a
reference to preemption.” Id. at 7.
Appellant’s preemption arguments do not persuade us of Examiner
error. While preemption may denote patent ineligibility, its absence does
not establish patent eligibility. See FairWarning, 839 F.3d at 1098. For
claims covering a patent-ineligible concept, preemption concerns “are fully
addressed and made moot” by an analysis under the Mayo/Alice framework.
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); see Ans. 5–6 (citing Ariosa).
“Whether a combination of claim limitations supplies an inventive
concept that renders a claim ‘significantly more’ than an abstract idea to
which it is directed is a question of law.” BSG Tech LLC v. BuySeasons,
Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). Given the claimed generic
computer-system and hardware components that perform generic computer
functions and the claimed insignificant extra-solution activity, we conclude
that the combination of limitations in each independent claim does not
supply an “inventive concept” that renders the claim “significantly more”
Appeal 2018-006712
Application 14/514,850

27
than an abstract idea. See Final Act. 7–8. Thus, each claim does not satisfy
§ 101 under Mayo/Alice step two.
SUMMARY FOR PATENT ELIGIBILITY
For the reasons discussed above, Appellant’s arguments have not
persuaded us of any error in the Examiner’s findings or conclusions under
Mayo/Alice step one or step two. Hence, we sustain the § 101 rejection of
the independent claims. We also sustain the § 101 rejection of the
dependent claims because Appellant does not argue eligibility separately
for them. See 37 C.F.R. § 41.37(c)(1)(iv).
The § 103 Rejection of Claims 1–3, 5, 8, 10–15, 17, 19, 21, and 23
INDEPENDENT CLAIMS 1, 11, AND 13
As noted above, the § 103 rejection of claims 1, 11, and 13 rests on
Johnson and Ray. See Final Act. 9–15, 21–23. Appellant argues that the
Examiner erred in rejecting claims 1, 11, and 13 because “the prior art fails
to teach or suggest” the following limitation in each claim: “comparisons
indicating that at least a first portion of the set of sampling times is not
between the stored updated time and the system time.” Appeal Br. 8; see
Reply Br. 6. According to Appellant, the “Examiner alleges that the claimed
solution is ‘an equivalent method’ to the solution taught by Ray,” and the
“Examiner must allege ‘equivalence’ because the prior art fails to teach or
suggest” the disputed limitation. Appeal Br. 8 (quoting Final Act. 15).
In addition, Appellant asserts that Ray’s “order index is a set of
numerical values shown as increasing from one (1) to some other value.”
Appeal Br. 8. Appellant also asserts that Ray “refers to the index values in
terms of a ‘relative order,’” i.e., “numerical values representing the relative
order the measurements were taken.” Id. at 8–9. Further, Appellant argues
Appeal 2018-006712
Application 14/514,850

28
that Ray’s “relative order is not the claimed update time, which is required
to be the same time used to update [the] time of a clock of a patient
monitoring apparatus, and which must correspond to a time of an accuracy
testing server.” Id. at 9.
In response, the Examiner explains that Ray discloses “the concept of
performing a comparison of one sample time to a time known to be before
the sample and a time known to be after the sample time and making a
determination regarding the accuracy of the sample time based on that
comparison.” Ans. 7. The Examiner reasons that “[i]f any of the sample
times” in Ray “is not in between the sample times of the sample taken
immediately preceding and immediately succeeding the sample time in
question,” then “there is a determination that the likelihood of the accuracy
of the sample time is low.” Id. at 6–7.
Based on the record before us, we agree with Appellant that the
Examiner has not adequately explained how the cited portions of Johnson
and Ray teach or suggest comparing “sampling times” to (1) a “stored
updated time” and (2) a “system time” as required by claims 1, 11, and 13.
For instance, the Examiner has not adequately identified a “system time” in
Ray. Hence, we do not sustain the § 103 rejection of claims 1, 11, and 13.
DEPENDENT CLAIMS 2, 3, 5, 8, 10, 12, 14, 15, 17, 19, 21, AND 23
Claims 2, 3, 5, 8, and 10 depend directly or indirectly from claim 1;
claims 12 and 23 depend directly from claim 11; and claims 14, 15, 17, 19,
and 21 depend directly or indirectly from claim 13. For the reasons
discussed for claims 1, 11, and 13, we do not sustain the § 103 rejection of
claims 2, 3, 5, 8, 10, 12, 14, 15, 17, 19, 21, and 23.
Appeal 2018-006712
Application 14/514,850

29
The § 103 Rejections of Claims 7, 9, 18, 20, and 22
Claims 7 and 9 depend directly from claim 1; claim 22 depends
directly from claim 11; and claims 18 and 20 depend directly from claim 13.
On this record, the Examiner has not shown how the additionally cited
secondary references—Sloan and Khanuja—overcome the deficiency in
Johnson and Ray discussed above for claims 1, 11, and 13. Hence, we do
not sustain the § 103 rejections of claims 7, 9, 18, 20, and 22.
CONCLUSION
We reverse the rejection of claims 5 and 17 under 35 U.S.C. § 112(a).
We affirm the rejection of claims 2, 5, 12, 14, and 17 under 35 U.S.C.
§ 112(b).
We affirm the rejection of claims 1–3, 5, 7–15, and 17–23 under
35 U.S.C. § 101.
We reverse the rejections of claims 1–3, 5, 7–15, and 17–23 under
35 U.S.C. § 103.
Because we affirm at least one ground of rejection for each claim on
appeal, we affirm the Examiner’s decision to reject all of the claims on
appeal. See 37 C.F.R. § 41.50(a)(1).
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5,
7–15,
17–23
101 Eligibility
1–3, 5,
7–15,
17–23

1–3, 5, 8,
10–15, 17,
19, 21, 23
103 Johnson, Ray
1–3, 5, 8,
10–15, 17,
19, 21, 23
Appeal 2018-006712
Application 14/514,850

30
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
7, 18, 22 103 Johnson, Ray, Sloan 7, 18, 22
9, 20 103 Johnson, Ray, Khanuja 9, 20
5, 17 112(a) Written Description 5, 17
2, 5, 12,
14, 17 112(b) Definiteness
2, 5, 12,
14, 17
Overall
Outcome
1–3, 5,
7–15,
17–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED