Ex Parte Scherpbier et al

Patent Trials and Appeals Board

Oct 8, 2013

11549253 - (D) (P.T.A.B. Oct. 8, 2013)

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
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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).
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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
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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
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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

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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
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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
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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
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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
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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
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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
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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
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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
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rvb 15