Ex Parte WatsonDownload PDFPatent Trial and Appeal BoardSep 25, 201813106766 (P.T.A.B. Sep. 25, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/106,766 05/12/2011 20995 7590 09/27/2018 KNOBBE MARTENS OLSON & BEAR LLP 2040 MAIN STREET FOURTEENTH FLOOR IRVINE, CA 92614 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR James Victor Watson 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. ONICS.OOlA 6006 EXAMINER TOMASZEWSKI, MICHAEL ART UNIT PAPER NUMBER 3686 NOTIFICATION DATE DELIVERY MODE 09/27/2018 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): j ayna.cartee@knobbe.com efiling@knobbe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES VICTOR WATSON Appeal2017-007516 Application 13/106, 7 66 Technology Center 3600 Before ST. JOHN COURTENAY III, MARC HOFF, and BETH Z. SHAW, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final rejection of claims 1, 22-24, and 26-40. Claims 2-21, and 25 are cancelled. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b ). We Affirm. STATEMENT OF THE CASE Introduction Appellant's invention generally relates to "[a] dynamic decision forest [that] may be used to guide clinical or other decision queries such that multiple decision trees are followed in sequence and jumps occur between 1 According to Appellant, the real party in interest is OnICS, Ltd., which is the assignee of the present application. App. Br. 1. Appeal2017-007516 Application 13/106,766 decision trees based on previously received query responses and the system's determination of what useful data has not been gathered." Abstract. Exemplary Claim 1. A method for generating a natural language clinical note with a treatment prescription, the method comprising: retrieving on a tablet computing device, from a separate clinical data acquisition server accessed by the tablet computing device over a computer network, query data corresponding to a set of possible clinical queries, each clinical query comprising a clinical inquiry and a plurality of associated response options; storing, in the tablet computing device, a copy of said query data; providing, via a touch-screen user interface of the tablet computing device, a physician user with a series of initial clinical queries from the set of possible clinical queries; receiving responses to the series of initial clinical queries, said responses entered into the user interface of the tablet computing device by the physician user of that device; storing the responses to the series of initial clinical queries; determining additional clinical queries, from the set of possible clinical queries, to provide to the user based upon the responses to the series of initial clinical queries, where predefined relationships between responses and the set of possible clinical queries are used in determining the additional clinical queries; providing the physician user with the additional clinical queries via the user interface; receiving responses to the additional clinical queries; 2 Appeal2017-007516 Application 13/106,766 storing the responses to the additional clinical queries; determining a think-ahead clinical query to provide to the physician user based at least in part on at least one of the received responses to the additional clinical queries, wherein the think-ahead clinical query is determined without use of predefined relationships between responses and the set of possible clinical queries, and wherein determining the think-ahead clinical query at this time provides efficient decisional operation compared to determining the think-ahead clinical query closer in time to when that query will be provided to the physician user, said decisional operation reflected by the fact that the current time for determining the think-ahead clinical query is closer in time to when the responses to the additional queries, used in making that think-ahead determination, were received; providing the physician user, via the user interface, with an intervening clinical query after the think-ahead clinical query has been determined, the intervening clinical query different than the think-ahead clinical query; receiving a response to the intervening clinical query via the user interface, wherein the response to the intervening clinical query does not affect the previously-made determination to provide the physician user with the think-ahead clinical query; storing the response to the intervening clinical query; providing the physician user, via the user interface, with the think-ahead clinical query without requiring, after the providing of the intervening clinical query, memory 3 Appeal2017-007516 Application 13/106,766 retrieval of the responses to the additional clinical queries upon at least one of which the think-ahead clinical query was based at least in part upon; receiving a response to the think-ahead clinical query via the user interface; storing the response to the think-ahead clinical query; determining a treatment prescription based at least in part on the responses to the series of initial clinical queries, the responses to the additional clinical queries, the response to the intervening clinical query, and the response to the think-ahead clinical query; accessing lexicographic and grammatical data from a lexicographic data store, said lexicographic data identifying one or more grammatical structures for a natural language including rule sets for the natural language, wherein at least one grammatical structure includes a rule set identifying grammatical relationships between different word types; generating a natural language clinical medical note reflecting the responses to the series of initial clinical queries, the responses to the additional clinical queries, the response to the intervening clinical query, the response to the think-ahead clinical query, and the treatment prescription, and reflecting at least one of the grammatical structures identified in the lexicographic data; providing the natural language clinical medical note to the physician user via the user interface, wherein the natural language clinical medical note reflects at least some of the responses to the clinical queries in a different order and context than they were presented to the physician user; 4 Appeal2017-007516 Application 13/106,766 storing redundant copies of record data reflecting the responses in two computing systems separate from the tablet computing device where those two computing systems are also physically separate from one another; and generating and storing audit trail data, wherein the audit trail data is stored separately from all other data generated by and relied upon by the method, and wherein the audit trail data reflects the received responses from the user in a manner sufficient to reconstruct the clinical note, for example in the event of a disaster; said method performed in its entirety by a computer system that comprises the computing device; wherein said tablet computing device stores data corresponding to the clinical queries in an array of flag bits utilizing single-bit logic to record which clinical queries from the set of possible clinical queries have been provided to the physician user, thereby improving computing efficiency through minimizing the memory utilization for the representation of each query to a single data bit; and wherein the method generates a natural language clinical note with a treatment prescription through gathering a greater volume of information than can be maintained in human memory and wherein the tablet computing device accordingly provides the gathered clinical note information to the physician user in smaller, iterative verification quantities based on a volume of information that can be maintained in human memory. App. Br. 19--21, Claims Appendix ( emphasis added regarding selected limitations). 5 Appeal2017-007516 Application 13/106,766 Rejection Claims 1, 22-24, and 26-40 are rejected under 35 U.S.C. § 101, as being directed to a judicial exception, without significantly more. 2 Final Act. 4---6. Issue on Appeal Did the Examiner err in rejecting claims 1, 22-24, and 26-40 under 35 U.S.C. § 101, as being directed a judicial exception, without significantly more? ANALYSIS We have considered all of Appellant's arguments and any evidence presented. We highlight and address specific findings and arguments for emphasis in our analysis below. Mayo/Alice Analysis under 35 USC§ 101 Under 35 U.S.C. § 101, a patent may be obtained for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." The Supreme Court has "long held that this provision contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). The Supreme Court in Alice reiterated the two-step framework previously set forth in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 2 See MPEP § 706.03(a), form paragraph 7.05.015. 6 Appeal2017-007516 Application 13/106,766 566 U.S. 66, 82-84 (2012), "for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent- eligible applications of those concepts." Alice, 134 S. Ct. at 2355. The first step in that analysis is to determine whether the claims at issue are directed to one of those patent-ineligible concepts, such as an abstract idea. Abstract ideas may include, but are not limited to, fundamental economic practices, methods of organizing human activities, an idea of itself, and mathematical formulas or relationships. Id. at 2355-57. If the "acts" of a claimed process manipulate only numbers, abstract concepts or ideas, or signals representing any of the foregoing, the acts are not being applied to appropriate subject matter. See Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972). "Phenomena of nature, thoughjust discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work." In re Ferguson, 558 F.3d 1359, 1363 (Fed. Cir. 2009) (quoting Benson, 409 U.S. at 67). Moreover, if a method can be performed by human thought alone, or by a human using pen and paper, it is merely an abstract idea and is not patent-eligible under § 101. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372-73 (Fed. Cir. 2011). If the claims are not directed to a patent-ineligible concept, the inquiry ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed. Cir. 2017). Otherwise, the inquiry proceeds to the second step in which the elements of the claims are considered "individually and 'as an ordered combination' to determine whether the additional elements 'transform the nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at 7 Appeal2017-007516 Application 13/106,766 2355 (quoting Mayo, 566 U.S. at 79, 78). We consider the question of whether the claims are directed to a specific improvement in the capabilities of the computing devices, or, instead, "a process that qualifies as an 'abstract idea' for which computers are invoked merely as a tool." Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016). We, therefore, decide under step two whether the claims: (a) set forth an inventive concept that provides a specific means or method that improves the relevant technology, or (b) are directed to a result or effect that itself is the abstract idea, in which the claims merely invoke generic processes and machinery. See Enfzsh, 822 F.3d at 1336. The Examiner's Rejection under 35 US.C. § 101 Regarding the first step of the Alice/Mayo analysis, the Examiner concludes that claims 1, 22-24, and 26-40 are directed to a judicial exception, without significantly more. Final Act. 2. The Examiner concludes: The abstract idea is identified as: patient management and processing medical information. Patient management (i.e., providing healthcare by generating and providing a natural language clinical note with a treatment prescription) is an abstract idea because it is a method of organizing human activity and is a fundamental economic practice. Processing medical information is an abstract idea because it uses categories to organize, store, and transmit information, etc.; collects and compares known information; and obtains and compares intangible data; etc. 8 Appeal2017-007516 Application 13/106,766 Final Act. 2 ( emphasis added). 3 Regarding the second step of the Mayo/Alice analysis, the Examiner finds the claims do not include additional elements that amount to significantly more than the judicial exception, because: the additional elements or combination of elements in the claims, other than the abstract idea per se, amount to no more than a recitation of (A) a generic computer structure(s) ( e.g., a computing system, a user computing device, a network, a server, etc.) that serves to perform generic computer functions that serve to merely link the abstract idea to a particular technological environment; and/or (B) functions that are well- understood, routine, and conventional activities previously known to the pertinent industry (e.g., storing query data, providing queries, receiving query responses, storing query responses, generating clinical medical notes, providing clinical medical notes, etc.). For example, paragraph [0021] of applicant's specification recites that [the] system/method can be implemented using a tablet computing device, a laptop, a desktop computer, a smartphone, etc. which are all generic type computers. Final Act. 2-3 (emphasis added). 4 3 "Patent eligibility under§ 101 presents an issue of law." Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340 (Fed. Cir. 2013). 4 The patent eligibility inquiry may contain underlying issues of fact Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325 (Fed. Cir. 2016). In particular, "[ t ]he question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact." Berkheimer v. HP Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). 9 Appeal2017-007516 Application 13/106,766 For the aforementioned reasons, the Examiner concludes that all claims 1, 22-24, and 26-40 on appeal are not patent eligible under 35 U.S.C. § 101. Mayo/Alice Analysis - Step 1 Appellant cites to the holdings of Enfzsh, DDR Holdings, 5 LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016), and Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288 (2016). App. Br. 10-13. Regarding Alice Step 1, Appellant contends: The Final Office Action addresses only the preamble of claim 1 in inaccurately describing the [ c ]laim as "a method of generating a natural language clinical note with a treatment prescription." By simply reciting the claim's preamble as supposedly reflecting the entire claim, the Final Office Action fails to credit the numerous, significant, technical limitations required by the lengthy claim beyond its preamble. App. Br. 13. Contrary to Appellant's arguments (id.), in reviewing the record, it is our view that the Examiner has set forth sufficient analysis to establish a prima facie case for all claims under 35 U.S.C. § 101, pursuant to the notice requirement of 35 U.S.C. § 132(a). See also the Examiner's detailed "Response to Arguments" in the Answer (2-7), which further explains the basis for the rejection. Appellant further contends: Contrary to the characterization within the Final Office Action, claim 1 is directed to a method for generating a natural 5 We address DDR Holdings, infra, under Alice, step 2. 10 Appeal2017-007516 Application 13/106,766 language clinical note using lexicographic data, a think-ahead query for efficient decisional operation, and an array of flag bits for efficient computing and memory minimization, where the method also generates separate audit trail data sufficient for note recreation in the event of disaster recovery. The method relies on a specific set of computer components, including a tablet computing device and a separate data acquisition server. When the elements of the claim are properly considered, rather than only the preamble, the claim does not resemble anything that has been found by the courts to represent an abstract idea (such as hedging in Bilski). App. Br. 13. In response, the Examiner further explains the basis for the rejection: The abstract ideas recited in the claims include patient management by generating a clinical note with a treatment prescription and processing medical information, by for example, organizing human activity; using fundamental economic practice; using categories to organize, store, and transmit information, etc.; collecting and comparing known information; obtaining and comparing intangible data; comparing new and stored information and using rules to identify options; comparing data to determine a risk level; and/or organizing information through mathematical correlations. Ans. 3 ( emphasis added). Appellant additionally contends that no preemption concern exists regarding claim 1. the Alice analysis asks whether the claims, if upheld, would pre-empt the use of the approach in all fields and effectively grant a monopoly over the abstract idea. Alice, slip op. 5---6. In the present case, no such preemption concern exists, as the issuance of the claim 1 clearly would not grant a monopoly over the generation of natural language clinical notes with clinical treatment prescriptions. In this regard, natural language 11 Appeal2017-007516 Application 13/106,766 clinical notes can be, and commonly are, generated without using a system that uses lexicographic data, a think-ahead query for efficient decisional operation, an array of flag bits for efficient computing and memory minimization, and separate audit trail data sufficient for note recreation in the event of disaster recovery. App. Br. 14 (emphasis added). Regarding Appellant's contention that no preemption concern exists regarding claim 1 (id.), our reviewing court provides applicable guidance: "[ w ]hile preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility." Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015); Ultramercial, Inc. v. Hulu LLC, 722 F.3d 1335, 1346 (Fed. Cir. 2013). Therefore, we are not persuaded by Appellant's argument regarding the absence of complete preemption. Regarding Appellant's additional arguments pertaining to Alice Step 1, we agree with Appellant that there is nothing positively recited in claims 1, 22-24, and 26-40 that is directed to afundamental economic practice per se (e.g., hedging, arbitrage, sales, advertising, sales contracts, transactions, and/or investment management, loans, and credit, inter alia), as asserted by the Examiner. Final Act. 2. Nevertheless, we recognize that providing medical services is a nationwide business that inherently involves billing, overhead expenses, physician's salaries, and the administrative cost of processing health insurance claims. However, we agree with the Examiner that all claims on appeal are at least directed to the abstract ideas of "organizing human activity; [and] using categories to organize, store, and transmit information, etc.; collecting and 12 Appeal2017-007516 Application 13/106,766 comparing known information; obtaining and comparing intangible data; comparing new and stored information and using rules to identify options; comparing data to determine a risk level; and/or organizing information through mathematical correlations," in accordance with the guidance of the various Federal Circuit cases cited infra. Ans. 2 (emphasis added). Regarding Appellant's arguments analogizing Enfzsh to the claims before us on appeal, we note that the court in Enfish (822 F.3d at 1336) concluded that there was no abstract idea under Alice step 1 ("Accordingly, we find that the claims at issue in this appeal are not directed to an abstract idea within the meaning of Alice. Rather, they are directed to a specific improvement to the way computers operate, embodied in the self-referential table."). Thus, the court concluded the claimed self-referential database table in Enfzsh was a specific type of data structure designed to improve the way a computer stores and retrieves data in memory. Enfish, 822 F.3d at 1339. Because the analysis stops if there is no abstract idea under Alice step 1, the court in Enfish concluded the claims were patent eligible. Here, Appellant has not persuasively shown that any features of the claimed invention improve the way the recited "lexicographic data store" ( claim 1) stores and retrieve data, in a manner analogous to that found by the court in Enfish. See claims 1 and 29. 6 Therefore, we are not persuaded that Appellant's claimed invention improves the recited tablet computer system or processor functionality or efficiency, or otherwise changes the way the claimed generic computer 6 See also our discussion of the recited "array of flag bits utilizing single-bit logic" ( claim 1 ), considered under Alice, step 2. 13 Appeal2017-007516 Application 13/106,766 components function, at least in the sense contemplated by the Federal Circuit in Enfzsh. Further, McRO (837 F.3d at 1312) guides: "The abstract idea exception prevents patenting a result where 'it matters not by what process or machinery the result is accomplished."' ( quoting O'Reilly v. Morse, 56 U.S. 62, 113 (1854)) (Emphasis added.). Here, we find each of Appellant's independent claims 1 and 29 is directed to the result of: generat[ing] a natural language clinical note with a treatment prescription through gathering a greater volume of information than can be maintained in human memory and wherein the tablet computing device accordingly provides the gathered clinical note information to the physician user in smaller, iterative verification quantities based on a volume of information that can be maintained in human memory. Independent claim 1 ( emphasis added); see also independent claim 29 which recites similar limitations having commensurate scope. We particularly emphasize that the steps, acts, or functions of all claims 1, 22-24, and 26-40 on appeal are executed by a generic tablet computing device, computer network, server, or other generic computer component. We tum to the Specification for context, and find exemplary, non-limiting descriptions of such generic computer components: The system, such as the FIG. 2 embodiment, may be implemented as a computing system that is programmed or configured to perform the various functions described herein. The computing system may include multiple distinct computers or computing devices ( e.g., physical servers, workstations, storage arrays, etc.) that communicate and interoperate over a network to perform the described functions. Each such 14 Appeal2017-007516 Application 13/106,766 computing device typically includes a processor ( or multiple processors) that executes program instructions or modules stored in a memory or other non-transitory computer-readable storage medium. Spec. ,r 71. Appellant cites Amdocs and further contends: In particular, the Federal Circuit relied on the data-enhancing claim limitation of the Amdocs patents, where a distributed architecture enhanced data collected from a source to create meaningful session records for a service provider. The Federal Circuit explained in Amdocs the importance of using a "common law" approach in comparing claims at issue to previous eligibility decisions. Applying such an approach here confirms that the claims should not be rejected under section 101. App. Br. 13. We note the Amdocs court found claim 1 : entails an unconventional technological solution (enhancing data in a distributed fashion) to a technological problem (massive record flows which previously required massive databases). The solution requires arguably generic components, including network devices and "gatherers" which "gather" information. However, the claim's enhancing limitation necessarily requires that these generic components operate in an unconventional manner to achieve an improvement in computer functionality. Id. at 1300--01 ( emphasis added). However, in contrast with Amdocs, Appellant does not present, nor do we find, a specific technical improvement provided by the claims before us on appeal. Appellant's claims do not operate the recited generic computer components in an unconventional manner to achieve an improvement in computer functionality. 15 Appeal2017-007516 Application 13/106,766 We additionally note the claims considered by the court in Amdocs are further distinguished from Appellant's claims on appeal, because the Amdocs court performed significant claim construction of the word "enhance" regarding the last recited '065 patent claim 1 function "of "using the accounting information ... to enhance the first network accounting record." (emphasis added). As noted by the Amdocs court: In Amdocs I, we construed "enhance" as being dependent upon the invention's distributed architecture. 761 F.3d at 1338--40 (quoting '065 patent at 7:51-57, 10:45-50, 7:7-8). We construed "enhance" as meaning "to apply a number of field enhancements in a distributedfashion." Id. at 1340. We took care to note how the district court explained that "[i]n this context, 'distributed' means that the network usage records are processed close to their sources before being transmitted to a centralized manager." Id. at 1338. And we specifically approved of the district court's "reading the 'in a distributed fashion' and the 'close to the source' of network information requirements into the term 'enhance.'" Id. at 1340. As explained by the patent, this distributed enhancement was a critical advancement over the prior art: Importantly, the distributed data gathering, filtering and enhancements performed in the system 100 enables load distribution. Granular data can reside in the peripheries of the system 100, close to the information sources. This helps avoids [ (sic) ] reduce congestion in network bottlenecks but still allows the data to be accessible from a central location. In previous systems, all the network information flows to one location, making it very difficult to keep up with the massive record flows from the network devices and requiring huge databases. '065 patent at 4:33--42. In other words, this claim entails an unconventional technological solution ( enhancing data in a distributed 16 Appeal2017-007516 Application 13/106,766 fashion) to a technological problem (massive record flows which previously required massive databases). The solution requires arguably generic components, including network devices and "gatherers" which "gather" information. However, the claim's enhancing limitation necessarily requires that these generic components operate in an unconventional *1301 manner to achieve an improvement in computer functionality. Amdocs at 1300--01 (emphasis added). Here, Appellant has not persuasively shown that the instant claims on appeal entail applying "an unconventional technological solution ( enhancing data in a distributed fashion) to a technological problem (massive record flows which previously required massive databases)," as found by the court in Amdocs at 1300. We note each of Appellant's independent claims 1 and 11 is directed to, inter alia, gathering and processing data, for example, see the recited "receiving" and "determining" steps of claim 1. Data gathering is a classic example of insignificant extra-solution activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en bane), aff'd on other grounds, 561 U.S. 593 (2010). Our reviewing court has concluded that abstract ideas include the concepts of collecting data, recognizing certain data within the collected data set, and storing the data in memory. Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014); see also Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1372 (Fed. Cir. 2017) ( concluding "claims directed to the collection, storage, and recognition of data are directed to an abstract idea"); Elec. Power Grp., LLC v. Alstom S.A., 17 Appeal2017-007516 Application 13/106,766 830 F.3d 1350, 1353 (Fed. Cir. 2016) (the collection of information and analysis of information are abstract ideas). Moreover, but for the recitation of generic computer components (independent claims 1 and 29), we are of the view that the recited steps or acts, or functions could be performed as mental steps, or with the aid of pen and paper (to aid human memory recall regarding a large volume of information). See Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1146-47 (Fed. Cir. 2016) ("While the Supreme Court has altered the § 101 analysis since CyberSource in cases like Mayo and Alice, we continue to 'treat[] analyzing information by steps people go through in their minds, or by mathematical algorithms, without more, as essentially mental processes within the abstract-idea category."' (Brackets in original) (quoting Elec. Power Grp., 830 F.3d at 1354)); see also CyberSource, 654 F.3d at 1375 ("That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson."). "[M]erely selecting information, by content or source, for collection [ and] analysis ... does nothing significant to differentiate a process from ordinary mental processes .... " Elec. Power Grp., 830 F.3d at 1355. Data gathering, such as receiving and analyzing ( or identifying data), by itself, does not transform an otherwise-abstract process or system of information collection and analysis. See id. For at least the aforementioned reasons, on this record, we conclude Appellant's claims 1, 22-24, and 26-40 are directed to an abstract idea, which is similar to the abstract ideas identified by our reviewing courts as 18 Appeal2017-007516 Application 13/106,766 discussed above, that could additionally be performed as mental steps, albeit with the aid of pen and paper. Mayo/Alice Analysis-Step 2 Because we conclude that the claims are directed to an abstract idea for essentially the same reasons articulated by the Examiner ("because it is a method of organizing human activity" - Final Act. 2; Ans. 3), we tum to the second part of the Alice/ Mayo analysis. We analyze the claims to determine if there are additional limitations that individually, or as an ordered combination, ensure the claims amount to "significantly more" than the abstract idea. Alice, 134 S. Ct. at 2357. Regarding Alice Step 2, Appellant addresses the purported inventive concept of the claims. Appellant contends: "Even if, arguendo, claim l involves an abstract idea at some level, it is directed to significantly more than an abstract idea, and thus complies with section 101 under Part 2 of the two-part test ... For example, claim l recites the following steps, among others, that represent significantly more than the alleged abstract idea of 'generating a natural language clinical note with a treatment prescription:"' App. Br. 14. Appellant then recites the following clauses of claim 1: "determining a think-ahead clinical query to provide to the physician user ... accessing lexicographic and grammatical data from a lexicographic data store ... generating a natural language clinical medical note ... generating and storing audit trail data ... wherein the method generates a natural language clinical note with a treatment prescription. 19 Appeal2017-007516 Application 13/106,766 In support, Appellant cites to DDR, and urges: "The solution recited by claim 1 is necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks." Appellant further contends "claim 1 addresses efficient storage of data in volumes beyond what the human memory can maintain and [t]he claimed, flag-bit computer storage architecture scheme is necessarily rooted in computer technology." App. Br. 10. We do not find that Appellant's claims are similar to the claimed solution the court held to be patent-eligible in DDR. In DDR, the Federal Circuit applied the Supreme Court's Alice two-step framework, and upheld the validity of DDR's patent on its web-page display technology. DDR, 773 F.3d at 1255. As discussed above, Appellant's claims are directed to a method of organizing human activity (see Final Act. 2). However, we find the problem addressed by Appellant's claims is not similar or otherwise analogous to the specific technical problem addressed by the subject claims in DDR, which were directed to retaining a website visitor when the visitor clicked on a third-party merchant's advertisement on the host website. Instead of taking the visitor to the third-party merchant's website (and thus losing the visitor to the third-party merchant), DDR's claimed system generated a hybrid web page that: (1) displayed product information from the third-party merchant, but also, (2) retained the host website's "look and feel." Here, Appellant's claims 1, 22-24, and 26-40 are not directed to a website that retains the host website's "look and feel" while displaying product information from the third-party merchant, as was the case in DDR, 20 Appeal2017-007516 Application 13/106,766 773 F.3d at 1257. Although Appellant's invention is directed to the result of: generat[ing] a natural language clinical note with a treatment prescription through gathering a greater volume of information than can be maintained in human memory and wherein the tablet computing device accordingly provides the gathered clinical note information to the physician user in smaller, iterative verification quantities based on a volume of information that can be maintained in human memory (Independent claim 1 ), we find the generated "natural language clinical note" is at best merely an improvement in the informational content (i.e., data) that is intended to be viewed and evaluated by a person, such as a physician, as a mental step. We find the claims on appeal are silent regarding specific limitations directed to an improved computer system, processor, memory, network, database, or Internet. Therefore, we find Appellant's claimed invention does not provide a solution "necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks," as considered by the court in DDR, 773 F.3d at 1257. (Emphasis added.). Further regarding the use of the recited generic "processor" ( claim 1 ), the Supreme Court held "the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention." Alice, 134 S. Ct. at 2358; see also Bascom Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1348 (Fed. Cir. 2016) ("An abstract idea on 'an Internet computer network' or on a generic computer is still an abstract idea."). On this record, we are of the view that Appellant's claims do not operate the recited generic computer components in an 21 Appeal2017-007516 Application 13/106,766 unconventional manner to achieve an improvement in computer functionality. Therefore, on this record we agree with the Examiner that Appellant's claims, other than the abstract idea per se, amount to no more than a recitation of: (A) a generic computer structure(s) (e.g., a computing device, a network, a server, a processor, etc.) that serves to perform generic computer functions that serve to merely link the abstract idea to a particular technological environment (i.e., computers); and/or [line break inserted] (B) functions that are well-understood, routine, and conventional activities previously known to the pertinent industry ( e.g., receiving data, storing data, transmitting data, etc.). For example,paragraph [0021] of appellant's published application recites that the invention can be implemented using a tablet computing device, a laptop, a desktop computer, a smartphone, etc. which are all general purpose or generic-type computers. Moreover, the focus of appellant's claims is not on an improvement in computers as tools, but on certain abstract ideas that use computers as tools. Final Act. 4 ( emphasis added). See Spec. ,r 21, as cited (Final Act. 4) by the Examiner: A dynamic decision forest may be implemented in a number of different embodiments, which could make use of different hardware ( e.g., local servers, web servers, desktop computers, laptops, tablet devices, smart phones, etc.) and/or different software, such as different programming languages, interface styles and/or network protocols. Spec. ,r 21. Under Alice step two, we particularly agree with the Examiner that the claimed "array of flag bits utilizing single-bit logic" ( claim 1) does not 22 Appeal2017-007516 Application 13/106,766 improve the computer ( or memory) itself, but instead merely affects how the clinical queries data is most efficiently stored in memory in a manner that promotes rapid recall. Claim 1. Our reviewing court provides additional guidance: See Fair Warning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1096 (Fed. Cir. 2016) ("[T]he use of generic computer elements like a microprocessor or user interface do not alone transform an otherwise abstract idea into patent-eligible subject matter"); OIP Techs., Inc., v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) ( claims reciting, inter alia, sending messages over a network, gathering statistics, using a computerized system to automatically determine an estimated outcome, and presenting offers to potential customers found to merely recite "'well-understood, routine conventional activities'" by either requiring conventional computer activities or routine data-gathering steps) (internal citation omitted). See also Elec. Power Grp., 830 F.3d at 1355 ("We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are 'insufficient to pass the test of an inventive concept in the application' of an abstract idea." (quoting buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1353, 1355 (Fed. Cir. 2014))); Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332, 1341 (Fed. Cir. 2017) ("Rather, the claims recite both a generic computer element-a processor-and a series of generic computer 'components' that merely restate their individual functions . . . . That is to say, they merely describe the functions of the abstract idea itself, without particularity. This is simply not enough under step two."). The Supreme Court additionally guides that the "prohibition against patenting abstract ideas 'cannot be circumvented by attempting to limit the 23 Appeal2017-007516 Application 13/106,766 use of the formula to a particular technological environment' or [by] adding 'insignificant postsolution activity."' Bilski v. Kappas, 561 U.S. 593, 610- 11 (2010) (quoting Diamond v. Diehr, 450 U.S. 175, 191-92 (1981)). We additionally note Appellant's untimely citation, on page 2 of the Reply Brief, to Rapid Litigation Management Ltd v.CellzDirect, Inc., 827 F.3d 1042 (Fed. Cir. 2016). Rapid Litigation was decided by the Federal Circuit on July 5, 2016. Appellant could have fully addressed Rapid Litigation in the Appeal Brief, filed on November 28, 2016, but did not do so. Therefore, we find Appellant's citation to Rapid Litigation in the Reply Brief (2) is untimely, because it is not an intervening authority. Because Appellant: ( 1) did not raise Rapid Litigation in the opening brief, and, (2) good cause has not been shown why it should be considered, we will not consider this argument. See 37 C.F.R. § 4I.41(b)(2); see also Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (Informative) ("[T]he reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not."). Because we find Appellant has not established that claims 1, 22-24, and 26-40 are directed to an improvement in the recited generic computer system, we conclude that none of the claim limitations, viewed both individually and as an ordered combination, amount to significantly more than the judicial exception in order to sufficiently transform the nature of the claims into patent-eligible subject matter. In light of the foregoing, we conclude, under the Mayo/Alice analysis, that each of Appellant's claims 1, 22-24, and 26-40, considered as a whole, is directed to a patent-ineligible abstract idea (under step one), and under 24 Appeal2017-007516 Application 13/106,766 step two, does not recite something "significantly more" to transform the nature of the claim into a patent-eligible application. Accordingly, for the reasons discussed above, we sustain the Examiner's rejection under 35 U.S.C. § 101 of claims 1, 22-24, and 26-40, as being directed to a judicial exception without significantly more. 7 CONCLUSION The Examiner did not err in rejecting claims 1, 22-24, and 26-40 under 35 U.S.C. § 101, as being directed to a judicial exception, without significantly more. DECISION We affirm the Examiner's decision rejecting claims 1, 22-24, and 26-40 under 35 U.S.C. § 101. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 )(iv). See 37 C.F.R. § 4I.50(f). AFFIRMED 7 To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. See 37 C.F.R. § 4I.37(c)(l)(iv). 25 Copy with citationCopy as parenthetical citation