Ex Parte Schlessinger et alDownload PDFPatent Trial and Appeal BoardMar 30, 201611503393 (P.T.A.B. Mar. 30, 2016) Copy Citation 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. 2 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. 3 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 4 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. 5 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 6 Copy with citationCopy as parenthetical citation