Ex Parte Vairavan et al

Patent Trial and Appeal Board

Dec 28, 2018

14379376 (P.T.A.B. Dec. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/379,376 08/18/2014 Srinivasan Vairavan
24737 7590 01/02/2019
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2012P00319WOUS 1048
EXAMINER
WISE, OLIVIA M.
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
01/02/2019 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SRINIVASAN V AIRA VAN,
CAITLYN CHIOFOLO, NICOLAS CHBAT, and
MONICA GHOSH 1
Appeal2018-000775
Application 14/379,376
Technology Center 1600
Before DEBORAH KATZ, JOHN G. NEW, and JOHN E. SCHNEIDER,
Administrative Patent Judges.
NEW, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify Koninklijke Philips N.V., as the real party in interest.
App. Br. 2.
Appeal2018-000775
Application 14/379,376
SUMMARY
Appellants file this appeal under 35 U.S.C. § 134(a) from the
Examiner's Final Rejection of claims 1, 4, 9-11, 13, 14, 16-18, 20, 23 and
32-35 as unpatentable under 35 U.S.C. § 101 as being directed to
nonstatutory subject matter.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
NATURE OF THE CLAIMED INVENTION
Appellants' invention is directed to improved apparatus and methods
for monitoring acute lung injury ("ALI"). Spec. 1.
REPRESENTATIVE CLAIM
Claim 1 is representative of the claims on appeal and recites:
1. (Previously presented) A non-transitory storage medium
storing instructions executable by an electronic data processing
device including a display to monitor a patient for acute lung
injury (ALI) by operations including:
(i) receiving a data stream of values for each of a
plurality of physiological parameters for the patient, the data
stream of values according to a plurality of discrete time intervals
and produced by a monitor monitoring the patient;
(ii) rece1vmg drug administration information
pertaining to administration of one or more drugs over time to
the patient;
(iii) computing ALI indicator values over time based at
least on the received values of the plurality of physiological
parameters for the patient and the received drug administration
information, wherein computing the ALI indicator values
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includes computing a Lempel-Ziv complexity metric for values
of each received data stream of each physiological parameter of
the plurality of physiological parameters which include heart rate
(HR), systolic blood pressure (SBP), diastolic blood pressure
(DBP), and respiration rate (RR), and for the each received drug
of the one or more drugs for the patient, and computing an
aggregation of the Lempel-Ziv complexity metrics, each ALI
indicator value being based on the aggregation of the Lempel-
Ziv complexity metrics; and
(iv) displaying a representation of the computed ALI
indicator values as a function of time on the display.
App. Br. 9.
ISSUES AND ANALYSES
We adopt the Examiner's findings, reasoning, and conclusion that the
claims are directed to nonstatutory subject matter. We address the
arguments raised by Appellants below.
Issue
Appellants argue the Examiner erred in concluding that the claims are
drawn to a judicial exception to 35 U.S.C. § 101, i.e., an abstract idea,
without adding significantly more. App. Br. 4.
Analysis
Appellants argue all of the claims together. App. Br. 4. Appellants
argue that, contrary to the Examiner's conclusion, the claims on appeal are
distinguishable from those of In re Grams, 888 F.2d 835 (Fed. Cir. 1989).
Id. According to Appellants, the claims in Grams were directed to: "a
method of testing a complex system to determine whether the system
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condition is normal or abnormal and, if it is abnormal, to determine the
cause of the abnormality." Id. at 5 (citing Grams, 888 F.2d at 836-37). In
contrast, Appellants argue, the claims on appeal are directed to monitoring
for a specific condition, which is Acute Lung Injury ("ALI"), using an
improved monitoring of patients, and employing a specific algorithm, i.e.,
aggregated Lempel-Zev complexity metrics. Id.
Appellants argue that their claimed invention improves upon an
existing process and, as such, delivers a more meaningful result. App. Br.
5. Furthermore, Appellants assert, the ALI-directed claims relate to a
specific condition and, unlike the situation in In re Grams, and do not "tie-
up" or preempt the medical condition. Id. Furthermore, Appellants
contend, the claims recite specific algorithms and not generally "different
combinations" recited by In re Grams. Id.
Appellants also dispute as misguided the Examiner's reliance on
Parker v. Flook, 437 U.S. 584 (1978). Appellants point to In re Abele, 684
F.2d 902 (C.C.P.A. 1982), as noting that Flook holds that: "[t]he patent
application did not 'explain how to select ... any of the variables' used in the
algorithm and [thus], no process other than the algorithm was present."
App. Br. 5 (citing Abele 684 F.2d at 907 (quoting Flook, 437 U.S. at 586)).
In contrast, Appellants argue, the claims on appeal recite the various
physiological parameters or variables in the Lempel-Ziv complexity metric.
Id. By way of example, Appellants point to claim 1, which recites
physiological parameters including heart rate, systolic blood pressure,
diastolic blood pressure, and respiration rate. Id. Appellants therefore
argue that the claims on appeal are thus distinguishable from Flook. Id.
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Appellants also point to claim 5 of Abele, which was directed to: "[a]
method displaying data in a field," which the court found to be patent-
ineligible, in contrast to its dependent claim 6, "wherein said data is X-ray
attenuation data produced in a two dimensional field by a computed
tomography scanner." App. Br. 6. Appellants note that the court in Abele
held that: "[ w Jere we to view the claim absent the algorithm, the production,
detection and display steps would still be present and would result in a
conventional CAT-scan process." Id. (quoting Abele, 684 F.2d at 908).
Appellants further note that the Abele court also states that: "[t]he algorithm,
when properly viewed, is merely applied to the 'attenuation data' to
eliminate what would otherwise appear as artifacts upon display of the data
in the manner claimed." Id. (quoting Abele, 684 F.2d at 908---09).
Similarly, Appellants argue, the algorithm of claim 1 on appeal is the
Lempel-Ziv complexity metric. App. Br. 6. According to Appellants, the
data recited in claim 1 includes a data stream of values for each of a plurality
of physiological parameters for the patient, the data stream of values
according to a plurality of discrete time intervals and produced by a monitor
monitoring the patient. Id. Appellants assert that the monitor monitoring
the patient is analogous the CT scanner of Abele, and that the physiological
data is analogous to the "x-ray attenuation data" of Abele. Id.
Appellants contend that, in Abele, the improvement was data
displayed in a field, which, as interpreted by the court, eliminates artifacts in
the displayed data. App. Br. 7. Likewise, Appellants argue, claim 1
recites an improvement in "a display to monitor a patient for acute lung
injury (ALI) by operations." Id. Consequently, Appellants argue, the
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claims recite an improved product of a better display to monitor a patient for
ALI by operations, and as in Abele, are patent-eligible subject matter.
In performing an analysis ofpatentability under 35 U.S.C. § 101, we
follow the framework set forth by the Supreme Court in Mayo Collaborative
Serves. v. Prometheus Labs. Inc., 566 U.S. 66, 71 (2012). As a first step,
we determine whether the claims at issue are directed to a patent-ineligible
concept, i.e., a law of nature, a phenomenon of nature, or an abstract idea.
Mayo, 566 U.S. at 70-71. If the claims are so directed, we next consider the
elements of each claim both individually and "as an ordered combination" to
determine whether additional elements "transform the nature of the claim"
into a patent-eligible application. Id. at 78-79; see also Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1375 (Fed. Cir. 2015). Specifically,
the Supreme Court considered this second step as determining whether the
claims recite an element or combination of elements that is "sufficient to
ensure that the patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself." Mayo, 566 U.S. at 72-73.
The Examiner has concluded that Appellants' claims are directed to a
patent-ineligible exception to Section 101, viz., an algorithm for calculating
parameters indicating an abnormal condition, which is an abstract idea. See
Final Act. 4. The Supreme Court "has not established a definitive rule to
determine what constitutes an 'abstract idea."' Enfzsh, LLC v. Microsoft
Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016) (citing Alice Corp. Pty. Ltd. v.
CLS Bank Int 'l, 134 S. Ct 2347, 2357 (2014)). However, our reviewing
court has held that information, as such, is intangible and the collecting of
information, including when limited to particular content (which does not
change its character as information), is within the realm of abstract ideas.
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See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed.
Cir. 2016) (collecting cases); see also Grams, 888 F.2d at 840 (Fed. Cir.
1989) ("The presence of a physical step in the claim [i.e., performing clinical
tests on individuals] to derive data for the algorithm will not render the claim
statutory"). The Federal Circuit has similarly treated the analyzing of
information by steps that a person is capable of performing mentally, or via
mathematical algorithms, without more, as essentially mental processes
falling within the abstract idea category. Elec. Power Grp., 830 F.3d at
1353-54. Furthermore, the court has held that the mere presentation of the
results of abstract processes of collecting and analyzing information, without
more, is abstract, as an ancillary part of such collection and analysis. Id.
Appellants' claims are directed to a series of steps by which
information concerning ALI is analyzed via a series of processing steps: (1)
receiving patient physiological data and drug administration information
over time; (2) computing the ALI indicator values, including computing a
Lempel-Ziv complexity metric for each physiological parameter and for the
each received drug, and computing an aggregation of the Lempel-Ziv
complexity metrics; and (3) displaying a representation of the computed ALI
indicator values as a function of time on the display. We agree with the
Examiner that all of these steps are directed to an abstract idea: they amount
no more than the receiving, manipulation, and display of data following the
steps of an algorithmic function. These information management and
analysis steps could be carried out in the human mind, or with the aid of
pencil and paper, and therefore are directed to a patent-ineligible abstract
idea. See, e.g., CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366
(2011).
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We therefore tum to the second portion of the Mayo test to inquire
whether the claims add "significantly more" than the abstract idea itself.
We conclude that they do not. As we have noted above, the claims are
directed to no more than routine data collection and a series of
computational steps using an algorithm, subsequent to which the data is
displayed. There are no additional steps adding significantly more than the
recited abstract computational process steps. Elec. Power Grp., 830 F.3d at
1353-54.
Furthermore, Appellants' Specification discloses that no special
processor is required to perform the algorithmic steps recited in the claims:
The patient monitor 10 is an "intelligent" monitor in that
it includes or is operatively connected with data processing
capability provided by a microprocessor, microcontroller, or the
like connected with suitable memory and other ancillary
electronics ( details not illustrated). In some embodiments the
patient monitor 10 includes internal data processing capability in
the form of a built-in computer, microprocessor, or so forth, such
that the patient monitor can perform autonomous processing of
monitored patient data. In other embodiments the patient
monitor is a "dumb terminal" that is connected with a server or
other computer or data processing device that performs the
processing of patient data. It is also contemplated for a portion
of the data processing capability to be distributed amongst
intercommunicating body-worn sensors or devices mounted on
the patient 8, e.g.[,] in the form of a Medical Body Area Network
(MBAN).
Spec. 4. As such, Appellants' claims do not recite a specific improvement
to the way computers operate, but merely the use of standard processors and
software. See Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed.
Cir. 2016).
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Nor are we persuaded by Appellants' reliance upon Abele. In Abele,
the court distinguished between claim 5, which the court found was directed
solely to the mathematical algorithm portion of Appellants' invention, and
claim 6, which required collecting attenuation data available only when an
X-ray beam is produced by a CAT scanner, passed through an object, and
detected upon its exit. Abele, 684 F .2d at 908. According to the court,
absent the algorithm, the production, detection and display steps of claim 6
would still be present and would result in a conventional CAT-scan process.
Id. Therefore, the court held, production and detection cannot be
considered mere antecedent steps to obtain values for solving the algorithm.
Id.
In contrast, the claims on appeal recite "receiving a data stream of
values for each of a plurality of physiological parameters" and receiving
"drug administration information" prior to the algorithmic processing. We
distinguish this from claim 6 of Abele, because the claims do not recite any
steps prior to receiving the data stream and applying the algorithm. Put
more simply, when the application of the algorithmic steps to the received
data, and displaying that data by conventional means, is stripped from the
claim, no patent-eligible composition or process limitations remain.
We consequently conclude, with respect to the second part of our
analysis, that the limitations, taken individually and as a whole, do not add
"significantly more" to the claims than the recited abstract idea. We
therefore affirm the Examiner's rejection of the claims as patent ineligible as
being directed to nonstatutory subject matter.
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DECISION
The Examiner's rejection of claims 1, 4, 9--11, 13, 14, 16-18, 20, 23
and 32-35 under 35 U.S.C. § 101 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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