Ex Parte Schlessinger et al

Patent Trial and Appeal Board

Mar 30, 2016

11503393 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111503,393 08/11/2006 Leonard Schlessinger
29989 7590 04/01/2016
HICKMAN PALERMO BECKER BINGHAM LLP
1 ALMADEN BOULEVARD
FLOOR 12
SAN JOSE, CA 95113
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
60173-0041 8884
EXAMINER
RAPILLO, KRISTINE K
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
usdocket@h35g.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEONARD SCHLESSINGER and DAVID EDDY
Appeal2013-009482
Application 11/503,393 1
Technology Center 3600
Before HUBERT C. LORIN, NINA L. MEDLOCK, and
BRADLEY B. BAY AT, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Leonard Schlessinger, et al. (Appellants) seek our review under
35 U.S.C. § 134 of the final rejection of claims 1-52. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).
SUMMARY OF DECISION
We REVERSE.
1 The Appellants identify Archimedes, Inc. as the real party in interest. App.
Br. 1.
Appeal2013-009482
Application 11/503,393
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method for simulating a clinical trial, comprising:
selecting a trial procedure for a simulated trial corresponding to the
clinical trial;
generating a virtual population of subjects for the simulated trial;
searching the virtual population of subjects to determine acceptable
subjects for the simulated trial;
selecting subjects for the simulated trial from the acceptable subjects;
simulating the trial procedure for the selected subjects;
wherein simulating the trial procedure for the selected subjects
includes:
representing, in one or more computer memories, selected
subjects as objects organized in a logical hierarchy according to
an object-oriented computer model of healthcare that includes
an object-oriented computer model of human physiology,
maintaining an ordered list of upcoming trial events that will
affect any of the objects, and times those events will occur, as
specified by the trial procedure,
(a) advancing a temporal variable to determine a next trial event in the
ordered list of trial events,
(b) determining an effect of the next trial event on at least one of the
objects, and
repeating (a) and (b) until at least one trial outcome for a selected
subject has been determined;
collecting trial data for the simulated trial from the simulated trial
procedure;
wherein at least the steps of generating a virtual population of subjects
and simulating the trial procedure are performed by one or more
computing devices.
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Appeal2013-009482
Application 11/503,393
THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Lamb
Bangs
Friedrich
US 2004/0152056 Al
US 2005/0131663 Al
US 2007 /0026365 Al
The following rejections are before us for review:
Aug. 5,2004
June 16, 2005
Feb. 1,2007
1. Claims 1--4, 6-9, 11-14, 16-19, 21-24, 26-29, 31-35, 37--40, 42--45,
and 47-52 are rejected under 35 U.S.C. §103(a) as being unpatentable
over Friedrich and Bangs.
2. Claims 5, 10, 15, 20, 25, 30, 36, 41, and 46 are rejected under
35 U.S.C. §103(a) as being unpatentable over Friedrich, Bangs, and
Lamb.
ISSUES
Did the Examiner err in rejecting claims 1--4, 6-9, 11-14, 16-19,
21-24, 26-29, 31-35, 37--40, 42--45, and 47-52 under 35 U.S.C. § 103(a) as
being unpatentable over Friedrich and Bangs?
Did the Examiner err in rejecting claims 5, 10, 15, 20, 25, 30, 36, 41,
and 46 under 35 U.S.C. § 103(a) as being unpatentable over Friedrich,
Bangs, and Lamb?
ANALYSIS
The rejection of claims 1--4, 6--9, 11-14, 16--19, 21-24, 26--29, 31-35,
37-40, 42--45, and 47-52 under 35 U.S.C. §103(a) as being unpatentable
over Friedrich and Bangs.
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Appeal2013-009482
Application 11/503,393
All the claims include the limitation "representing, in one or more
computer memories, selected subjects as objects organized in a logical
hierarchy according to an object-oriented computer model of healthcare that
includes an object-oriented computer model of human physiology." See
independent claims 1, 16, and 32.
The Examiner takes the position that said limitation is disclosed at
"paragraphs 70, 71, 72, and 73 where Bangs discloses simulation modeling
software which comprises a core (coded using object oriented language) and
the core comprises classes of objects, and where each object comprises a
collection of parameters or data fields." Answer 5.
The difficulty with the Examiner's position is that we do not find
there any disclosure of organizing subjects, let alone "representing ...
selected subjects as objects organized in a logical hierarchy according to an
object-oriented computer model of healthcare that includes an object-
oriented computer model of human physiology" as claimed. Although
Bangs does disclose sub-models (e.g., at i-f73 ("Complex models are also
often broken down into a system of sub-models, either using software
features or merely by the modeler's convention."), suggesting a logical
hierarchy, said disclosure is arguably directed to the claimed "object-
oriented computer model of healthcare that includes an object-oriented
computer model of human physiology." There is no mention of subjects
within the model Bangs describes. The model appears to apply to a patient
rather than organizing patients according to the model. The model does not
"represent[] ... selected subjects as objects organized in a logical
hierarchy," as the claims require. Thus, we agree with the Appellants that
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Appeal2013-009482
Application 11/503,393
"[t]here is no description in Bangs of representing virtual patient objects as
organized in a logical hierarchy according to an 00 [i.e., object oriented]
model." App. Br. 8.
For the foregoing reasons, we find that a prima facie case of
obviousness for the subject matter as a whole has not been made out in the
first instance by a preponderance of the evidence and, according, the
rejection is not sustained.
The rejection of claims 5, 10, 15, 20, 25, 30, 36, 41, and 46 under 35 U.S.C.
§103 (a) as being unpatentable over Friedrich, Bangs, and Lamb.
The claims here rejected depend from independent claims whose
rejection we have reversed above. The Examiner's position as to the claim
limitation at issue is the same; that is, Bangs discloses "representing, in one
or more computer memories, selected subjects as objects organized in a
logical hierarchy according to an object-oriented computer model of
healthcare that includes an object-oriented computer model of human
physiology." Because a preponderance of the evidence does not support
such a finding-of-fact, the rejection is not sustained.
CONCLUSIONS
The rejection of claims 1--4, 6-9, 11-14, 16-19, 21-24, 26-29, 31-35,
37--40, 42--45, and 47-52 under 35 U.S.C. § 103(a) as being unpatentable
over Friedrich and Bangs is not sustained.
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Appeal2013-009482
Application 11/503,393
The rejection of claims 5, 10, 15, 20, 25, 30, 36, 41, and 46 under
35 U.S.C. §103(a) as being unpatentable over Friedrich, Bangs, and Lamb is
not sustained.
DECISION
The decision of the Examiner to reject claims 1-52 is reversed.
REVERSED
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