11278085 (P.T.A.B. Mar. 13, 2017)

Ex Parte Chuang et al

Patent Trial and Appeal BoardMar 13, 2017

11278085 (P.T.A.B. Mar. 13, 2017)

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. 11/278,085 03/30/2006 Ian Z. Chuang CRNI. 125587 5824 46169 7590 03/15/2017 SHOOK, HARDY & BACON L.L.P. (Cerner Corporation) Intellectual Property Department 2555 GRAND BOULEVARD KANSAS CITY, MO 64108-2613 EXAMINER DELICH, STEPHANIE ZAGARELLA ART UNIT PAPER NUMBER 3623 NOTIFICATION DATE DELIVERY MODE 03/15/2017 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): IPDOCKET@SHB.COM IPRCDKT@SHB.COM BPARKERSON @ SHB .COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAN Z. CHUANG, PAUL N. GORUP, and NEAL L. PATTERSON Appeal 2014-004579 Application 11/278,085 Technology Center 3600 Before NINA L. MEDLOCK, BRUCE T. WIEDER, and SCOTT C. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35U.S.C. § 134 from the final rejection pursuant to 35 U.S.C. § 103(a) of claims 1—11, 13—17, and 19-22, which are all of the pending claims.1 Appellants do not appeal the Examiner’s nonstatutory double patenting rejection. We have jurisdiction under 35 U.S.C. §6. We reverse. 1 Appellants state that the real party in interest is “Cemer Innovation, Inc.” Appeal Br. 3. Appeal 2014-004579 Application 11/278,085 Claimed Subject Matter The claims are directed to an opportunity-based clinical process optimization. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. One or more non-transitory computer storage media storing computer-useable instructions that, when used by one or more computing devices, cause the one or more computing devices to perform a method in a clinical computing environment for identifying one or more opportunities to improve a current clinical process, the current clinical process being of a particular type of clinical process, the method comprising: accessing optimized practice process model data, the optimized practice process model data defining one or more critical levers based on an optimal clinical process, the optimal clinical process having been predefined for the particular type of clinical process and detailing a plurality of activities for the particular type of clinical process, each critical lever corresponding with an activity within the optimal clinical process that has been predetermined to have a greater potential to impact outcomes for the particular type of clinical process as compared to other activities in the optimal clinical process that have not been predetermined as critical levers, wherein the optimal clinical process and one or more critical levers have been predefined prior to analyzing the current clinical process based at least in part on analysis of one or more selected from the following: medical literature, published medical guidelines, and operational evidence collected from a plurality of clinical facilities; accessing from the current clinical process one or more current measures, each of the one or more current measures corresponding with at least one of the one or more critical levers; and comparing at least one of the one or more current measures against the optimized practice process model data to identify one or more opportunities to improve the clinical process. 2 Appeal 2014-004579 Application 11/278,085 References and Rejections The Examiner relies on the following references in rejecting the claims on appeal: Zakim US 7,379,885 B1 May 27,2008 Bito US 2003/0216939 A1 Nov. 20, 2003 Bulitta US 2004/0176980 A1 Sept. 9,2004 Claims 1—11, 13—17, and 19-22 stand rejected under 35 U.S.C. §103 (a) as being unpatentable over Bito, Bulitta, and Zakim. Final Act. 13 (mailed May 21, 2013). ANALYSIS Appellants argue, inter alia, that the cited references do not teach or suggest “the use of critical levers that correspond with activities that have been predetermined to have a greater potential to impact outcomes for a particular type of clinical process and predefined prior to analyzing the current clinical process.” Appeal Br. 8. In particular, Appellants assert: Bito is silent regarding employing critical levers as in claim 1 that are activities that have been predetermined to have a greater potential to impact outcomes. Instead, Bito’s clinical pathway is merely a collection of clinical services, with no thought given to how each of those services impacts outcomes. Id. at 9. In response, the Examiner directs us to the Specification that Appellants have cited as support for the disputed claim limitation. See Ans. 3^4. In particular, the Examiner finds that the Specification discloses that optimal clinical processes may be defined based on literature, best practices, and operational evidence (see id. at 4), but does not contain any other “disclosure regarding . . . calculations or criteria for selection of an 3 Appeal 2014-004579 Application 11/278,085 optimized model or designation of certain activities as critical” (id.). The Examiner also finds that the Specification does not contain any disclosure regarding predetermination of activities as having greater potential to impact outcomes compared to other activities, other than “the mere statement that the selected activities, have a greater potential to impact outcomes based on identification of the activities in the optimized model.” Id. at 5. Based on these findings regarding the Specification, the Examiner determines that the claim limitation critical lever corresponding with an activity within the optimal clinical process that has been predetermined to have a greater potential to impact outcomes for the particular type of clinical process as compared to other activities in the optimal clinical process that have not been predetermined as critical levers must be construed as encompassing any activity that “in a general sense, [has] the potential to influence outcomes compared to other activities,” if that activity is part of a practice model that was “determined based on best practices and/or operational data/evidence.” Ans. 5—6. The Examiner finds that Bito discloses a process model that includes activities that are derived from the “case mix” and the “clinical pathway database,” and further finds that the “case mix” and “clinical pathways” are “derived from previous pathways in cases in which previous practice is utilized to define the pathway.” Id. at 8. The Examiner then applies the claim construction set forth above, and determines, based on these findings, that Bito discloses critical levers of the type required by claim 1. See id. at 8—9. We are persuaded that the Examiner erred in reaching the finding that Bito teaches critical levers of the type required by claim 1. The first sub-paragraph of claim 1 requires an “optimal clinical process” that includes two types of “activities:” (1) critical levers that have 4 Appeal 2014-004579 Application 11/278,085 been “predetermined to have a greater potential to impact outcomes ... as compared to other activities in the optimal clinical process,” and (2) “other activities in the optimal clinical process that have not been predetermined as critical levers.” Thus, an optimal clinical process does not necessarily include critical levers. Critical levers only exist if there has been a predetermination that some activities in an optimal clinical process “have a greater potential to impact outcomes” as compared to other activities in the same process. In contrast, the Examiner’s construction of “critical lever” encompasses any activity that “in a general sense [has] the potential to influence outcomes compared to other activities,” so long as that activity is included in a practice model that was “determined based on best practices and/or operational data/evidence.” See Ans. 5—6. This construction is unreasonably broad because it does not take into account the claim language limiting critical levers to activities within a process flow that have been “predetermined to have a greater potential impact on outcomes ... as compared to other activities” in the same process flow. The Examiner does not find that Bito discloses a process model containing activities that have been “predetermined to have a greater potential to impact outcomes ... as compared to other activities” in the process model. Thus, the Examiner’s determination that Bito discloses a “critical lever” of the type required by claim 1 is not adequately supported. Independent claims 13 and 17 both require critical levers that have been “predetermined to have a greater potential to impact outcomes for the particular type of clinical process as compared to other activities in the optimal clinical process.” The rejections of claims 13 and 17 are deficient for the same reason discussed above with respect to claim 1. 5 Appeal 2014-004579 Application 11/278,085 Claims 2—11, 14—16, and 19-22 all depend from, and thus incorporate the limitations of, claims 1, 13, or 17. The rejections of claims 2—11, 14—16, and 19—22 are deficient for the same reason discussed above. DECISION For the foregoing reasons, we reverse the Examiner’s decision rejecting claims 1—11, 13—17, and 19-22 under 35 U.S.C. § 103(a). REVERSED 6