Jorn Op Den Buijs et al.Download PDFPatent Trials and Appeals BoardJul 31, 201914070618 - (D) (P.T.A.B. Jul. 31, 2019) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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. 14/070,618 11/04/2013 Jorn OP DEN BUIJS 2012P01500US01 4548 24737 7590 07/31/2019 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER HEIN, DEVIN C ART UNIT PAPER NUMBER 3686 NOTIFICATION DATE DELIVERY MODE 07/31/2019 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JORN OP DEN BUIJS, MAARTIE HELENA SCHONENBERG, and STEFFEN CLARENCE PAUWS ____________________ Appeal 2018-004219 Application 14/070,6181 Technology Center 3600 ____________________ Before ERIC B. CHEN, JEREMY J. CURCURI, and HUNG H. BUI, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1, 4–5, 8–10, 15–16, and 21–22, which are all the claims pending in the application. App. Br. 26–29 (Claims App.). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.2 1 According to Appellants, KONINKLIJKE PHILIPS ELECTRONICS N.V. is the real party in interest. App. Br. 2. 2 Our Decision refers to Appellants’ Appeal Brief filed October 19, 2017 (“App. Br.”); Reply Brief filed March 12, 2018 (“Reply Br.”); Examiner’s Answer mailed January 10, 2018 (“Ans.”); Final Office Action mailed June Appeal 2018-004219 Application 14/070,618 2 STATEMENT OF THE CASE Appellants’ invention relates to a system and method for healthcare economic analysis that selects the most cost-effective intervention or treatment for a specific patient from multiple interventions and treatments available to the patient. Spec. 1:4–8. According to Appellants, by incorporating advanced prediction models using neural networks that “can be formulated and updated on a regular basis in a secure offline environment,” more accurate predictions of future costs and health outcomes of interventions can be obtained. Spec. 3:11–23, 7:5–18. Claims 1 and 10 are independent. Claim 1 is illustrative of the claimed subject matter, as reproduced below with the disputed limitation in italics: 1. A method for facilitating selection of medical interventions specific to a patient via a neural-network-integrated user application, the method comprising: providing a user application that includes a neural network integrated with the user application, the neural network of the user application being configured to predict health effects and intervention costs for one or more potential interventions; [1] periodically providing parameters obtained from a risk model engine as input to the neural network via the user application to cause periodic updating of the neural network of the user application, the risk model engine being external to the user application, [2] the risk model engine generating the parameters by periodically querying a historical patient database and processing historical patient data associated with a plurality of patients obtained via the periodic querying; estimating, via the periodically-updated neural network of the user application, health effects and intervention costs for individual interventions potentially for use with a patient, the 27, 2017 (“Final Act.”); and original Specification filed November 4, 2013 (“Spec.”). Appeal 2018-004219 Application 14/070,618 3 estimation via the periodically-updated neural network being based on patient data associated with the patient; calculating net health benefits for the individual interventions based on the estimated health effects and intervention costs; and generating and providing, at a user interface of the user application, a comparison of the net health benefits for the individual interventions. App. Br. 26 (Claims App.) (bracketing added). EVIDENCE CONSIDERED Schmidt et al. (“Schmidt”) US 2012/0232930 A1 Sept. 13, 2012 Morris et al. (“Morris”) US 2012/0245953 A1 Sept. 27, 2012 O’Day et al. (“O’Day”) “Is it time to eliminate the Icer? Using Net Benefits to Report the Results of Deterministic Cost- Effectiveness Analyses” Aug. 21, 2008 Morris et al. (“Morris ‘582”) US 2011/0105852 A1 May 5, 2011 EXAMINER’S REJECTIONS (1) Claims 1, 4–5, 8–10, 15–16, and 21–22 stand rejected under 35 U.S.C. § 101 because the claimed invention is directed to an abstract idea without significantly more. Final Act. 2–6. (2) Claims 1, 4–5, 8–10, 15–16, and 21–22 stand rejected under 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the written description requirement. Final Act. 6–7. (3) Claims 1 and 10 stand rejected under 35 U.S.C. § 103 as being obvious over Schmidt and Morris. Final Act. 8–11. Appeal 2018-004219 Application 14/070,618 4 (4) Claims 4–5, 8–9, 15–16, and 21–22 stand rejected under 35 U.S.C. § 103 as being obvious over Schmidt, Morris, O’Day, and Morris ‘582. Final Act. 11–17. DISCUSSION Patent-Eligible Subject Matter: In rejecting claims 1, 4–5, 8–10, 15–16, and 21–22 under 35 U.S.C. § 101, the Examiner determines these claims are directed to “predicting health effects and invention costs for [an individual based on] one or more potential interventions” which fall into multiple categories of abstract ideas, including (i) “an idea of itself [i.e., a mental process that could be performed in the human mind or by a human using a pen and paper],” and (ii) “certain methods of organizing human activity,” and include limitations that are analogous or similar to (1) concepts of collecting information, analyzing it, and displaying certain results of the collection and analysis as discussed in Electric Power Group; (2) concepts of risk hedging in Bilski v. Kappos, 561 U.S. 593 (2010); and (3) concepts of organizing information through mathematical correlations as discussed in Digitech. Final Act. 3–4; see Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (holding that claims directed to “gathering and analyzing information of a specified content, then displaying the results” are patent-ineligible under § 101); see Bilski v. Kappos, 561 U.S. 593 (2010) (holding that claims directed to method of hedging risk in commodities trading is “a fundamental economic practice long prevalent in our system of commerce” are patent- ineligible under § 101); see also Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014) (holding claims directed to “a Appeal 2018-004219 Application 14/070,618 5 process of organizing information through mathematical correlations” are patent-ineligible under § 101). The Examiner also determines the claims fail to amount to “significantly more than the judicial exception” or contain an “inventive concept” because the additional elements recited (1) generic computer elements that perform generic computer functions that are “well-understood, routine, and conventional activities previously known to the pertinent industry” and (2) do not improve the functioning of a computer or improve any other technology. Final Act. 5–6; Ans. 3–7. Appellants argue independent claims 1 and 10 together (App. Br. 5– 18). We select claim 1 as representative. Claims 4–5, 8–9, 15–16, and 21– 22 stand or fall with claim 1 (see 37 C.F.R. § 41.37(c)(1)(iv)). Legal Framework To determine whether claims are patent eligible under § 101, we apply the Supreme Court’s two-step framework articulated in Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208 (2014). First, we determine whether the claims are directed to a patent-ineligible concept: laws of nature, natural phenomena, and abstract ideas. Id. at 217. If so, we then proceed to the second step to consider the elements of the claims “individually and ‘as an ordered combination’” to determine whether there are additional elements that “‘transform the nature of the claim’ into a patent-eligible application.” Id. In other words, the second step is to “search for an ‘inventive concept’ —i.e., 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.’” Id. at 217–18 (alteration in original) Appeal 2018-004219 Application 14/070,618 6 (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)). The Federal Circuit has described the Alice step-one inquiry as looking at the “focus” of the claims, their “character as a whole,” and the Alice step-two inquiry as looking more precisely at what the claim elements add—whether they identify an “inventive concept” in the application of the ineligible matter to which the claim is directed. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016); Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). In an effort to achieve clarity and consistency in how the Office applies the Supreme Court’s two-step framework, the Office recently published revised guidance interpreting governing case law and establishing a framework to govern all patent-eligibility analysis under Alice and § 101 effective as of January 7, 2019. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50–57 (Jan. 7, 2019) (“2019 Revised Guidance”). 2019 Revised Guidance Under the Revised Guidance, we first look under Alice step 1 or “Step 2A” to whether the claim recites: (1) Prong One: any judicial exceptions, including certain groupings of abstract ideas (i.e., [i] mathematical concepts, [ii] mental processes, or [iii] certain methods of organizing human activity such as a fundamental economic practice or managing personal behavior or relationships or interactions between people); and (2) Prong Two: additional elements that integrate the judicial exception into a practical application (see Manual of Patent Appeal 2018-004219 Application 14/070,618 7 Examining Procedure (“MPEP”) §§ 2106.05(a)–(c), (e)– (h)).3 See Revised Guidance, 84 Fed. Reg. at 51–52, 55, Revised Step 2A, Prong One (Abstract Idea) and Prong Two (Integration into A Practical Application). Only if a claim: (1) recites a judicial exception, and (2) does not integrate that exception into a practical application, do we then evaluate whether the claim provides an “inventive concept” under Alice step 2 or “Step 2B.” See 2019 Revised Guidance at 56; Alice, 573 U.S. at 217–18. For example, we look to whether the claim: 1) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or 2) simply appends well-understood, routine, and conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See 2019 Revised Guidance, 84 Fed. Reg. at 56. Alice/Mayo—Step 1 (Abstract Idea) Step 2A–Prongs 1 and 2 identified in the Revised Guidance Step 2A, Prong One Turning to the first step of the Alice inquiry, Appellants argue the claims are not directed to an abstract idea because (1) the Examiner overgeneralized the claims and did not consider all limitations including “providing a user application that includes a neural network integrated with the user application” and “periodically providing parameters obtained from a risk model . . . periodically querying a historical patient database and processing historical patient data associated with a plurality of patients 3 All references to the MPEP are to the Ninth Edition, Revision 08.2017 (rev. Jan. 2018). Appeal 2018-004219 Application 14/070,618 8 obtained via the periodic querying”; and (2) the Examiner “merely provided a conclusory opinion void of any supported analysis regarding how the features of each and every claim (including the dependent claims) fail to recite patent-eligible subject matter.” App. Br. 5, 12–15. Contrary to Appellants’ arguments, Appellants’ Specification and claims describe processing of healthcare data so to enable “selecting the most cost-effective intervention or treatment for a specific patient from multiple intervention and treatment programs applicable to that patient’s clinical condition” Spec. 1:4–10. For example, Appellants’ representative claim 1 defines a method comprising (numbering added): (1) estimating, via the periodically-updated neural network of the user application, health effects and intervention costs for individual interventions potentially for use with a patient, the estimation via the periodically-updated neural network being based on patient data associated with the patient; (2) calculating net health benefits for the individual interventions based on the estimated health effects and intervention costs; and (3) generating and providing, at a user interface of the user application, a comparison of the net health benefits for the individual interventions. App. Br. 26 (Claims App.). As correctly recognized by the Examiner (see Final Act. 3–4), steps (1)–(3) of Appellants’ representative claim 1, recite nothing more than a series of “mental processes” that could be performed in the human mind or by a human using a pen and paper—a subject matter that falls within the three types of abstract ideas identified by the Revised Guidance. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. Appeal 2018-004219 Application 14/070,618 9 2011) (“[A] method that can be performed by human thought alone is merely an abstract idea and is not patent-eligible under § 101.”); see also In re Comiskey, 554 F.3d 967, 979 (Fed. Cir. 2009) (“[M]ental processes—or processes of human thinking—standing alone are not patentable even if they have practical application.”); Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Phenomena of nature, . . . mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” (Emphasis added)). Additionally, mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. 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.”). For example, steps (1)–(3) of Appellants’ claim 1 can be performed by a person administrator of an health insurance company or a physician office who is tasked to determine net health benefits for each health care procedure in a list of procedures that are being considered given a patient’s condition. Alternatively, providing a comparison of net health benefits for each individual healthcare procedure based on the health effects and costs recite the concept of basic financial activity that occurs in the healthcare industry. Getting net health benefits for the service options in order to make a treatment choice or budgeting is also part of a fundamental economic principle or practice. Therefore, we conclude steps (1)–(3) recited in claim 1, recite a fundamental economic practice, which is a method of organizing human activity identified in the Revised Guidance, and thus an abstract idea. See Revised Guidance (Revised Step 2A, Prong One), 84 Fed. Reg. at 52, 54. Appeal 2018-004219 Application 14/070,618 10 Thus, under Step 2A, Prong One, we agree with the Examiner the claims recite an abstract idea identified in the Revised Guidance. Step 2A, Prong Two (Integration into a Practical Application) Under Prong Two of the Revised Guidance, we must determine if the claims integrate the judicial exception into a practical application. That is, we determine whether a meaningful limit is imposed on the judicial exception, such that the claims are more than a drafting effort that monopolizes the judicial exception. In particular, we identify any additional claim limitations beyond the judicial exception and evaluate those additional limitations, individually or in combination, to determine whether they integrate the judicial exception into a practical application. However, we discern no additional elements (e.g., user application, processor, user interface) recited in Appellants’ method claims 1 and 10 that integrate the abstract idea into a practical application. See PTO § 101 Memorandum, Revised Step 2A, Prong Two. For example, Appellants’ claimed additional elements (e.g., processor, user application, user interface) recited in claim 1 do not: (1) improve the functioning of a computer or other technology; (2) are not applied with any particular machine (except for a generic computer); (3) do not effect a transformation of a particular article to a different state; and (4) are not applied in any meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. See MPEP §§ 2106.05(a)–(c), (e)–(h). Appellants argue that claim 1 is directed to “a particular useful application that provides an improvement to another technology or technical Appeal 2018-004219 Application 14/070,618 11 field (e.g., computer assisted selection of medical interventions)” in that by utilizing “specific computer rules/conditions to improve a system’s ability to facilitate selection of medical interventions specific to a patient,” the “claimed invention may increase the accuracy of and reduce the computational resource consumption of computer-assisted selection of medical interventions.” App. Br. 6–7 (citing Spec. 2:6–3:20). However, as recognized by the Examiner (Ans. 4–6), there is no support for any feature that would “reduce computational resource consumption” in the Specification. Even if the Specification has support for such feature, Appellants’ claim 1 is focused on “periodic updating of the neural network of the user application,” rather than improving accuracy of the selection of medical intervention by technical means or to an improved computer functionality by reducing the computational resource consumption. Further, Appellants’ claim 1 does not recite any feature deemed necessary to improve computer-related technology. Instead, claim 1 merely recites an insignificant “post-solution activity,” i.e., periodically providing parameters obtained from a risk model engine as input to the neural network via the user application to cause periodic updating of the neural network of the user application” See Parker v. Flook, 437 U.S. 584 (1978). That is, claim 1 does not recite or require the periodic updating of the neural network to reduce the computational resource consumption, as Appellants argue. See App. Br. 6–7; Reply Br. 13. We also note Appellants’ reliance on McRO is misplaced. For example, McRO’s ’576 patent (U.S. Patent No. 6,307,576) describes computer software for matching audio to a 3D animated mouth movement to provide lip-synched animation. McRO’s claims contain (i) specific Appeal 2018-004219 Application 14/070,618 12 limitations regarding a set of rules that “define[] a morph weight set stream as a function of phoneme sequence and times associated with said phoneme sequence” to enable computers to produce “accurate and realistic lip synchronization and facial expressions in animated characters” (McRO, 837 F.3d at 1313) and, when viewed as a whole, are directed to (ii) a “technological improvement over the existing, manual 3–D animation techniques” that uses “limited rules in a process specifically designed to achieve an improved technological result in conventional industry practice.” Id. at 1316. In contrast to McRO, Appellants’ Specification and claims do not describe technological improvements or specific improvements to the way computers operate. Rather, Appellants’ Specification and claims describe techniques that periodically update a neural network of a user application to estimate health effects and intervention costs for individual intervention for a patient; and then using the estimation to calculate net health benefits for the individual interventions. Appellants argue, like the claims in McRO, their claims recite “a particular technical solution that uses specific ‘rules in a process specifically designed to achieve an improved technological result in conventional industry practice’ (e.g. medical industry practice).” See Reply Br. 13. However, Appellants’ claim 1 does not recite any feature deemed necessary to improve any computer-related technology. In particular, Appellants’ method of “periodically providing parameters obtained from a risk model engine as input to the neural network via the user application to cause periodic updating of the neural network of the user application” does not provide a technical solution to a technical problem. The focus of Appeal 2018-004219 Application 14/070,618 13 Appellants’ invention is not to improve the performance of computers or any underlying technology; instead, the focus is to computers as a tool to gather patient data to generate parameters in order to update a neural network of a user application (see Spec. 5:1–6). While Appellants’ methods may improve the process of estimation based on the updated parameters, it is not improvement to another technology or technical field. Thus, under Step 2A, Prong Two, we determine the abstract idea is not integrated into a practical application under the Revised Guidance. Alice/Mayo—Step 2 (Inventive Concept) Step 2B identified in the Revised Guidance In the second step of the Alice inquiry, Appellants contend claims 1, 4–5, 8–10, 15–16, and 21–22 recite “significantly more” than the alleged abstract idea. App. Br. 15–16. In particular, Appellants argue “independent claims 1 and 10, when considered individually and as a combination, (1) like the claims in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), “the claimed technical solution can be patent-eligible, even if . . . claimed invention solves a non-technical problem (e.g., a business challenge or other non-technical problem,” and (2) recite a “non- conventional and non-generic arrangement” of features similar to the claims in BASCOM Global Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). App. Br. 13–18; Reply Br. 11. Appellants’ arguments are not persuasive. In contrast to DDR, Appellants’ Specification and claims describe techniques that provide a comparison of the net health benefits for individual intervention based on estimated health effects and costs— a fundamental economic practice long prevalent in our system of commerce. See Spec. 4: 5–16. Appellants’ selection technique based on the advanced prediction model does not Appeal 2018-004219 Application 14/070,618 14 provide a technical solution to a technical problem unique to the Internet, i.e., a “solution . . . necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” DDR, 773 F.3d at 1257. Instead, the solution proposed by Appellants is a business solution rather than a technological solution that utilizes a general purpose computer. Appellants’ reliance on Bascom is also misplaced. For example, Bascom (U.S. Patent No. 5,987,606 (“Bascom ’606 patent”)) describes a particular arrangement of filtering software at a specific location, remote from the end-users, with customizable filtering features specific to each end user. The filtering software enables individually customizable filtering at the remote ISP server by taking advantage of the technical ability of the ISP server to identify individual accounts and associate a request for Internet content with a specific individual account. Bascom ’606 patent, 4:35–38. The Federal Circuit recognized that Bascom’s installation of an Internet content filter at a particular network location is “a technical improvement over prior art ways of filtering such content” because such an arrangement advantageously allows the Internet content filter to have “both the benefits of a filter on a local computer and the benefits of a filter on the ISP server” and “give[s] users the ability to customize filtering for their individual network accounts.” Bascom, 827 F.3d at 1350, 1352. According to the panel, Bascom’s claims “do not preempt the use of the abstract idea of filtering content on the Internet or on generic computer components performing conventional activities.” Id. Instead, Bascom’s claims “carve out a specific location for the filtering system (a remote ISP server) and require the filtering system to give users the ability to customize filtering for Appeal 2018-004219 Application 14/070,618 15 their individual network accounts.” Id. As such, “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces.” Id. at 1350. In contrast to Bascom, Appellants’ claims and Specification are directed to a system and method for “selecting the most cost-effective intervention or treatment for a specific patient from multiple intervention and treatment programs applicable to that patient’s clinical condition” Spec. 1:5–7. There is no evidence in the record to support the contention that Appellants’ claimed system is provided with any non-conventional and non- generic arrangement of known, conventional components similar to Bascom. Because Appellants’ independent claims 1 and 10 are directed to a patent-ineligible abstract concept and do not recite an “inventive concept” or provide a solution to a technical problem under the second prong of the Alice analysis, we sustain the Examiner’s rejection of claims 1, 4–5, 8–10, 15–16, and 21–22 under 35 U.S.C. § 101. 35 U.S.C. § 112, First Paragraph: Claims 1, 4–5, 8–10, 15–16, and 21–22 In support of the § 112, first paragraph rejection of claims 1, 4–5, 8– 10, 15–16, and 21–22, the Examiner finds Appellants’ disclosure (i.e., Spec. 7:5–24) only show “neural network which is updated and used to predict health effects and intervention costs” recited in claims 1 and 10, without a proper “written description” of “how it is implemented, the architecture of the neural network, how it is updated or used to predict health effects or intervention costs.” Final Act. 6–7. According to the Examiner, “[i]f the Appeal 2018-004219 Application 14/070,618 16 Applicant wishes to claim such detailed functions of the neural network, further description is needed in the specification.” Id. at 7. Appellants argue (1) “it is clear that the Specification conveys with reasonable clarity to those skilled in the art that Appellant was in possession of the claimed invention, including the recitation of a neural network”; and (2) “[o]ne of ordinary skill in the art would understand, how a neural network works, how it could be implemented and updated” App. Br. 18–19. In response, the Examiner takes the position that (1) “neural networks are complex and are tailored to the specific task at hand” and as such, require “extensive development and tuning.” Ans. 7. We do not agree with the Examiner. At the outset, we note that the “written description” requirement under 35 U.S.C. § 112(a) is a question of fact. Ralston Purina Co. v. Far-Mar-Co, Inc., 772 F.2d 1570, 1575 (Fed. Cir. 1985). The Federal Circuit has recognized that determining whether a patent complies with the “written description” requirement will necessarily vary depending on the context. Capon v. Eshhar, 418, F.3d 1349, 1357–58 (Fed. Cir. 2005). Specifically, the level of detail required to satisfy the written description requirement varies depending on the nature and scope of the claims and on the complexity and predictability of the relevant technology. Id. For generic claims to satisfy the “written description” requirement, the court has set forth a number of factors for evaluating the adequacy of the disclosure, including “the existing knowledge in the particular field, the extent and content of the prior art, the maturity of the science or technology, [and] the predictability of the aspect at issue.” Id. at 1359. Appeal 2018-004219 Application 14/070,618 17 Because the “neural network” limitations recited in claims 1 and 10 are well known in the art and need not be described in detail, we do not sustain the Examiner’s § 112, first paragraph rejection of claims 1, 4–5, 8– 10, 15–16, and 21–22. 35 U.S.C. § 103: Claims 1, 4–5, 8–10, 15–16, and 21–22 In support of the obviousness rejection of independent claim 1 and, similarly, claim 10, the Examiner finds the combination of Schmidt and Morris teaches all the claim limitations. Final Act. 8–11. In particular, the Examiner finds Schmidt’s clinical decision support system teaches most aspects of Appellants’ claimed method, including the disputed limitations: [1] periodically providing parameters obtained from a risk model engine as input to the neural network via the user application [to cause periodic updating of the neural network of the user application]; and [2] the risk model engine generating the parameters by periodically querying a historical patient database and processing historical patient data associated with a plurality of patients obtained via the periodic querying. Final Act. 9 (citing Schmidt ¶¶ 7, 33, 36–39, 63–70). In particular, the Examiner finds Schmidt teaches “updating of the neural network” and “querying a historical patient database” by disclosing “providing clinical path knowledge obtained from a historical patient database to the application for use in an algorithm to predict the best clinical path for a patient” and “training the algorithms based on new data mining.”. Final Act. 9 (citing Schmidt ¶¶ 7, 33, 36–39, 63–70). According to the Examiner, “[t]he value of the clinical path knowledge increases with the Appeal 2018-004219 Application 14/070,618 18 number of patient histories on which in [sic] relies” and “[u]nder broadest reasonable interpretation, periodically may be a single time or occasionally” and when “each time the system is implemented for a patient, it queries the database and updates the algorithm with new parameters, construed as periodically.” Final Act. 9; Ans. 9–10. Appellants acknowledge Schmidt’s clinical decision support system uses “knowledge about clinical paths generated in the past for a large number of patients, which are stored in a clinical database ‘MedBase’ 22” and “the value of the clinical database 22 increases with the number of patient histories it contains,” where “each patient history (if recorded correctly) contributes to the available network of actions and decision points.” App. Br. 23 (citing Schmidt ¶¶ 36–37, 39). However, Appellants argue (1) Schmidt does not teach any “periodic providing of parameters” to “cause periodic updating” of a user application; (2) “merely mentioning that ‘the value of the clinical database 22 increases with the number of patient histories it contains’ does not mean that parameters (generated by periodically querying a historical patient database) are periodically provided ‘to cause periodic updating of the user application’”; and (3) merely mentioning using a neural network cannot be properly interpreted as “periodically providing parameters obtained from a risk model engine” to “cause periodic updating of the neural network of the user application” as well as “periodically querying a historical patient database” as recited in claims 1 and 10. App. Br. 23; Reply Br. 15–17. We do not find Appellants’ arguments persuasive. At the outset, we note claim terms, during prosecution, are given their broadest reasonable interpretation consistent with the Specification. In re Am. Acad. of Sci. Tech Appeal 2018-004219 Application 14/070,618 19 Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under the broadest reasonable interpretation, claim terms are given their ordinary and customary meaning, as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). The phrase “periodically” is not defined or described in Appellants Specification. Instead, Appellants’ Specification uses a word “regular basis” in context of updating and querying (Spec. 3: 21–23; 10:14–17). As recognized by the Examiner, the phrase “periodically” recited in Appellants’ claim 1 can be broadly, but reasonably interpreted to encompass “each time the system is implemented for a patient” as disclosed in Schmidt. See Schmidt ¶¶ 38–39. In addition, Schmidt also teaches the disputed limitations, i.e., “providing parameters obtained from a risk model engine as input to the neural network … to cause periodic updating of the neural network of the user application.” For example, Schmidt’s Figure 3 illustrates how parameters are used as input to the neural network to display an outcome, as reproduced below: Appeal 2018-004219 Application 14/070,618 20 Schmidt’ Figure 3 shows a screenshot of a graphical user interface (GUI) of clinical decision support system 22. Schmidt teaches a clinical decision support system that includes a clinical database “MedBase” 22 for storing “clinical paths generated in the past for a large number of patients.” Schmidt ¶ 36. Of these stored clinical paths, all similar paths are used to generate an aggregating path that can be used as an input to the algorithm for finding an optimal path for a patient. Id. at ¶38. As such, as shown in Schmidt’s Figure 3, based on similar cases found in the clinical “MedBase” database 22, Schmidt’s clinical decision support system suggests additional diagnostics (i.e., biopsy) and determines Appeal 2018-004219 Application 14/070,618 21 that the therapy option with the highest probability of curing the cancer is a surgery. Schmidt ¶ 42. The screenshot report shown in Schmidt’s Figure 3 is based on the aggregate path that is used as an input to an algorithm based on the similar paths generated in the clinical database 22. As such, if the clinical paths are updated based on the increased patient data in the clinical database 22, then the aggregate path used as an input is updated, resulting in an updated report. Such is shown in the graphical user interface (GUI) of Figure 8 where information about diagnose and therapies are updated. Id. at ¶ 24. Based on this record, Appellants’ arguments have not persuaded us of Examiner error. Accordingly, we sustain the Examiner’s obviousness rejection of claim 1, and similarly, independent claim 10 for which Appellants provide the same arguments, and their dependent claims 4–5, 8– 9, 15–16, and 21–22 argued for their dependency. App. Br. 24. CONCLUSION On the record before us, we conclude Appellants have demonstrated the Examiner erred in rejecting claims 1, 4–5, 8–10, 15–16, and 21–22 under 35 U.S.C. § 112, first paragraph. However, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1, 4–5, 8–10, 15– 16, and 21–22 under 35 U.S.C. §§ 101 and 103. DECISION As such, we sustain the Examiner’s rejection of claims 1, 4–5, 8–10, 15–16, and 21–22 under 35 U.S.C. §§ 101 and 103. However, we do not Appeal 2018-004219 Application 14/070,618 22 sustain the Examiner’s rejection of claims 1, 4–5, 8–10, 15–16, and 21–22 under 35 U.S.C. § 112, first paragraph. Because we have sustained at least one ground of rejection with respect to each claim on appeal, the Examiner’s decision is affirmed. See 37 C.F.R. § 41.50(a)(1). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation