Ex Parte Scherpbier et alDownload PDFPatent Trials and Appeals BoardOct 8, 201311549253 - (D) (P.T.A.B. Oct. 8, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/549,253 10/13/2006 Harm Jacob Scherpbier 2005P22008 US01 6670 28524 7590 10/08/2013 SIEMENS CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 170 WOOD AVENUE SOUTH ISELIN, NJ 08830 EXAMINER PATEL, NEHA ART UNIT PAPER NUMBER 3686 MAIL DATE DELIVERY MODE 10/08/2013 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 1 ___________ 2 3 BEFORE THE PATENT TRIAL AND APPEAL BOARD 4 ___________ 5 6 Ex parte HARM JACOB SCHERPBIER and JOHN WEIS 7 ___________ 8 9 Appeal 2011-006884 10 Application 11/549,253 11 Technology Center 3600 12 ___________ 13 14 15 Before ANTON W. FETTING, BIBHU R. MOHANTY, and 16 PHILIP J. HOFFMANN, Administrative Patent Judges. 17 FETTING, Administrative Patent Judge. 18 DECISION ON APPEAL 19 Appeal 2011-006884 Application 11/549,253 2 STATEMENT OF THE CASE1 1 Harm Jacob Scherpbier and John Weis (Appellants) seek review under 2 35 U.S.C. § 134 of a final rejection of claims 1-19, the only claims pending 3 in the application on appeal. We have jurisdiction over the appeal pursuant 4 to 35 U.S.C. § 6(b). 5 The Appellants invented a way of automatically tracking patients at 6 different locations and automatic patient load balancing in healthcare 7 resource management (Specification 1:12-14). 8 An understanding of the invention can be derived from a reading of 9 exemplary claim 1, which is reproduced below [bracketed matter and some 10 paragraphing added]. 11 1. A task management system for use in providing healthcare to 12 a patient, comprising: 13 [1] a patient tracking processor for automatically, 14 acquiring data 15 derived by wireless communication 16 from patient attached tag devices 17 for use in 18 [1a] identifying a location 19 of a plurality of patients 20 in a healthcare enterprise 21 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed October 12, 2010) and the Examiner’s Answer (“Ans.,” mailed December 8, 2010). Appeal 2011-006884 Application 11/549,253 3 and 1 [1b] identifying 2 a first number of patients 3 at a particular location 4 awaiting processing 5 at a particular treatment 6 process stage 7 and 8 a second number of patients 9 being processed 10 at said particular 11 treatment process stage 12 to receive a particular 13 type of treatment at one 14 or more different 15 locations; 16 and 17 [2] a workflow processor 18 for automatically initiating 19 a patient load balancing activity 20 to improve a match between 21 a healthcare resource 22 and 23 a patient load 24 at said particular treatment process stage 25 by communicating a message 26 to update a healthcare worker task schedule 27 with a task 28 in response to a determination 29 Appeal 2011-006884 Application 11/549,253 4 the identified first or second number 1 of patients 2 exceeds 3 a predetermined threshold number. 4 The Examiner relies upon the following prior art: 5 Bixler US 7,333,002 B2 Feb. 19, 2008 Rosow US 2003/0074222 A1 Apr. 17, 2003 Corkern US 2005/0209886 A1 Sep. 22, 2005 Claims 1-19 stand rejected under 35 U.S.C. § 103(a) as unpatentable 6 over Rosow, Corkern, and Bixler. 7 ISSUES 8 The issues of obviousness turn primarily on whether the phrase 9 “identifying a … number of patients” requires identifying the actual numeric 10 total of patients or just the patients themselves. 11 FACTS PERTINENT TO THE ISSUES 12 The following enumerated Findings of Fact (FF) are believed to be 13 supported by a preponderance of the evidence. 14 Facts Related to Claim Construction 15 01. The disclosure contains no lexicographic definition of “a … 16 number of patients.” 17 Appeal 2011-006884 Application 11/549,253 5 02. The phrase “a number of people” is an English language idiom 1 generally meaning some people or an indefinite amount of 2 people.2 3 Facts Related to the Prior Art 4 Rosow 5 03. Rosow is directed to automated resource management and virtual 6 instrument technology and to a real-time support tool for patient 7 bed assignments and other process in a health care facility and to 8 profiling historical, current and future activities and events such as 9 bed occupancy levels therein. Rosow para [0002]. 10 04. Referring to FIG. 13 at block 102, the system displays a sortable 11 list of all of the patients meeting the specified criteria. Referring to 12 FIG. 14, a patient details screen 106 can be accessed by clicking 13 on the name or row of a desired patient. The patient details screen 14 is populated by the bed management system using the patient data. 15 A user having the proper authorization can view, enter or update 16 the patient data accordingly. For example, if the patient is a 17 security risk, indicated at 108, if the patient requires a negative 18 pressure room 110, if the patient requires a telemetry monitor 112. 19 Rosow paras [0088-89]. 20 05. The capabilities of the data mining and reporting module 40 21 through the use of analytical tools such as SPC and six sigma 22 2 McGraw-Hill Dictionary of American Idioms and Phrasal Verbs at http://idioms.thefreedictionary.com/number+of+things+or+people, 2002 Appeal 2011-006884 Application 11/549,253 6 methodologies, as well as others allow the bed management 1 system 10, to provide innumerable reports and analysis of the 2 data stored in the database 20 as well as data exported from other 3 applications and sources such as those mentioned above. For 4 example, in the chart shown in FIG. 35, a trauma registry chart is 5 shown wherein over 12,000 patients have been stratified and 6 profiled into 252 unique diagnosis related groups (DRG). The 7 chart in FIG. 35 details the top 20 most frequent DRG categories. 8 Rosow para [0122]. 9 06. Other possible events or conditions that one or more agents can be 10 configured to monitor and report are such things as the average 11 wait time in the emergency room wherein certain thresholds are 12 predetermined and the activities of patients who have (or 13 potentially have) communicable diseases and/or are immune 14 suppressed (and therefore require either positive or negative 15 pressure rooms). Rosow para [0130]. 16 07. Intelligent agents can be configured to provide alerts and 17 notifications for innumerable conditions throughout the health 18 care facility and the processes of the bed management system such 19 as an alert that that a patient suspected of having an airborne 20 contagious disease (such as tuberculosis) is not being placed into a 21 negative pressure room, an alert that a number of available or 22 staffed beds has surpassed 90, 95 or 100% of capacity or other 23 threshold and alerts as to the status of outpatients who have 24 exceeded 23 hours in outpatient capacity. Rosow paras [0131], 25 [0134], [0137-138]. 26 Appeal 2011-006884 Application 11/549,253 7 Corkern 1 08. Corkern is directed to tracking patient progress through various 2 stations or departments within a hospital in association with 3 admission to the emergency department using one or more patient 4 charts that are individually associated with a corresponding Radio 5 Frequency Identification (RFID) tag, one or more racks for the 6 one or more patient chart, each rack being associated with a reader 7 or interrogator for collecting information from each RFID tag 8 when the chart is placed in the rack, and a data interpretation 9 station operably connected to the reader or interrogator for 10 collecting the information gathered from the RFID tags. Corkern 11 para [0009]. 12 09. An exemplary embodiment for tracking patient flow through an 13 emergency department of a healthcare facility comprises the 14 following steps: associating at least one patient chart with an 15 RFID tag encoded with information for identifying the patient 16 chart; associating at least one chart holder with an RFID 17 interrogator to read the information; linking at least one RFID 18 interrogator associated with at least one chart holder to a 19 monitoring system for collecting information from the RFID 20 interrogator; assigning to at least one patient a chart upon arrival 21 in the emergency department, the RFID tag associated with the 22 chart being encoded with a patient identification number; and 23 monitoring the information from the RFID interrogator to 24 determine the time interval between placement of the chart into 25 the chart holder and removal of the chart from the chart holder. In 26 Appeal 2011-006884 Application 11/549,253 8 one embodiment of the invention, a predetermined time interval 1 that is recommended as a minimum average amount of time that a 2 patient should remain at a particular station, such as a department 3 or laboratory, for example, is programmed into the monitoring 4 system so that an alarm is produced to alert healthcare workers 5 whenever a patient has remained for longer than that interval at 6 any one particular station. In another embodiment, a report is 7 generated to indicate the length of time each patient remained at 8 any particular station during a typical reporting period. Such 9 reports can comprise the basis for assessing the efficiency of each 10 department or laboratory and can identify bottlenecks that should 11 be addressed in order to improve patient care. Corkern para 12 [0010]. 13 10. Corkern describes prior art wireless tags worn by patients. 14 Corkern para [0005]. 15 Bixler 16 11. Bixler is directed to patient monitoring equipment and nurse call 17 systems for automatically assigning priority to patient monitoring 18 equipment when being integrated into a nurse call system by use 19 of location tracking and time-basing the equipment's proximity. 20 Bixler 1:7-13. 21 12. An automatic equipment assignment system has a wireless 22 tracking system data communication interface, a nurse call system 23 data communication interface, and an event subscription system 24 coupled to the wireless tracking system data communication 25 Appeal 2011-006884 Application 11/549,253 9 interface and the nurse call system data communication interface. 1 The event subscription system assigns mobilized equipment that 2 has been wirelessly tracked and coupled to an equipment 3 communication port, to a nurse call system coupled to the nurse 4 call system data communication interface. Bixler 1:46-55. 5 13. An ID badge is attached to a person or piece of equipment, and 6 transmits a wireless signal (infrared, ultrasonic, RF, or a 7 combination). Processing software receives these signals, attaches 8 room names and staff or equipment names and types to the ID's, 9 and sends staff and equipment movement and status messages to 10 clients via an application programming interface (API). Bixler 11 2:35-41. 12 ANALYSIS 13 Claim 1 14 We are not persuaded by the Appellants’ argument that the art fails to 15 identify the actual number in the phrase “a … number of patients.” App. Br. 16 7-10. The issue here is the proper interpretation of this phrase. 17 Unfortunately, Appellants chose an English language idiom generally 18 referring to an indefinite group of patients for this limitation. In the face of a 19 limitation susceptible to plural reasonable interpretations, the Office may 20 test each interpretation against the art, because “[i]t is the applicants’ burden 21 to precisely define the invention, not the PTO’s.” In re Morris, 127 F.3d 22 1048, 1056 (Fed. Cir. 1997). 23 Although it is possible to interpret the claim as identifying the actual 24 numeric total of such patients, it is equally proper to interpret the claim as 25 Appeal 2011-006884 Application 11/549,253 10 identifying some indefinite group of patients. The art clearly identifies such 1 an indefinite group, and this is how the Examiner interpreted the claim 2 phrasing. 3 Given no clear exclusion of such an interpretation in the claim, we find 4 the Examiner’s construction reasonable in view of the ordinary and 5 customary idiomatic usage of this phrasing and the art describes such 6 identification. The Appellants’ arguments regarding the advantages of the 7 claim over the art do not describe actual claim limitations and rely on the 8 Appellants’ interpretation of the phrasing. 9 While limitation [2] does recite “a determination the identified first or 10 second number of patients exceeds a predetermined threshold number,” this 11 does not require identification of the numeric totals per se but only the 12 relationship between such totals and some threshold, which the art’s capacity 13 utilization tests provide. 14 We are not persuaded by the Appellants’ argument that Corkern’s 15 attachment of tags to patient charts is incompatible with Rosow and Bixler. 16 Appellants argue that Corkern does not attach tags to patients, but to patient 17 charts. App. Br. 10-11. Even Corkern describes such tags attached to 18 patients in the prior art. Simply describing a preferred embodiment as an 19 alternative is not a teaching away or a description of incompatibility. 20 Corkern does not indicate disadvantages of attaching a tag to the patient per 21 se, but instead Corkern describes the advantages of not retyping all the 22 patient data into a patient smart tag. As such a tag being worn by the patient 23 is acknowledged by Corkern as prior art, and the operation alters only in the 24 Appeal 2011-006884 Application 11/549,253 11 reader technology employed, Corkern is not incompatible with the other two 1 references. 2 Dependent Claims 3 The Examiner made factual findings as to all of the limitations added in 4 the dependent claims. We adopt those factual findings as our own. 5 As to claim 2, the re-direction argued by Appellants is not narrowed as 6 to implementation. Rosow’s alerts are a form of direction away, and so a 7 form of re-direction. 8 As to claim 3, the diagnostic basis for workload rebalancing argued by 9 Appellants is at least predictable in view of the heavy diagnostic reporting in 10 Rosow and Rosows’ alerts for more staffing, which would necessarily have 11 to be responsive to the actual patient needs as reported by the diagnostic 12 data. 13 As to claim 4, parent claim 1 recites initiating activity by communicating 14 a message. Claim 4 recites activities that may result from that message, but 15 such activities are not themselves components of a system. As the only 16 structural requirements is the capacity to initiate a message, and Rosow does 17 so, and expediting anything may be initiated by a message, the structural 18 limitations in claim 4 clearly have the capacity to initiated the activities 19 recited in claim 4, and such activities are clearly predictable in a health care 20 context. 21 As to claims 5-7, again, claim 1 only recites initiating load balancing 22 activity, not the performance of the activity. Thus the recitation of steps in 23 the activity so initiated is outside the scope of the structural limitations. As 24 with claim 4, initiation any activity has the capacity to start such an activity. 25 Appeal 2011-006884 Application 11/549,253 12 Further, hitting the physical constraints on staffing and time are predictable 1 triggers for adding resources in any type of venture, including health care. 2 As to claim 8, the claim does not narrow the manner of implementing 3 the recited adjustment of capacity, and sending messages for more staff 4 would inherently adjust capacity as the staff reported for duty. 5 As to claim 9 is not separately argued substantively. 6 As to claim 10, and again, the incorporation of parent claim 1 only 7 requires initiation of such capacity adjustment, Rosow explicitly checks 8 average emergency room wait time with a threshold, rendering the use of the 9 data at least a predictable trigger. 10 As to claim 13, comprehensively tracking patients, and their individual 11 duration of stay in particular locations, and how many there are in particular 12 locations requires only tracking the prior art patient tags, and the time each 13 tag enters each area, as the data structure for the tags, then inherently tracks 14 total patients, and the system clock tracks duration since entering an area. 15 16 CONCLUSIONS OF LAW 17 The rejection of claims 1-19 under 35 U.S.C. § 103(a) as unpatentable 18 over Rosow, Corkern, and Bixler is proper. 19 20 21 22 23 Appeal 2011-006884 Application 11/549,253 13 DECISION 1 The rejection of claims 1-19 is affirmed. 2 No time period for taking any subsequent action in connection with this 3 appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 4 § 1.136(a)(1)(iv) (2011). 5 6 AFFIRMED 7 8 9 10 11 12 13 14 rvb 15 Copy with citationCopy as parenthetical citation