KONINKLIJKE PHILIPS N.V.Download PDFPatent Trials and Appeals BoardJun 2, 20212021000165 (P.T.A.B. Jun. 2, 2021) 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. 14/647,493 05/27/2015 Benjamin LORMAN 2012P00438WOUS 8648 24737 7590 06/02/2021 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER BARR, MARY EVANGELINE ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 06/02/2021 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 BENJAMIN LORMAN, YU-LUNG HSIEH, VARUN VERMA, CHI-HUA TUNG, and CHANGHONG DAI Appeal 2021-000165 Application 14/647,493 Technology Center 3600 ____________ Before MICHAEL C. ASTORINO, MATTHEW S. MEYERS, and ROBERT J. SILVERMAN, Administrative Patent Judges. MEYERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s final decision to reject claims 1–3, 5–13, and 15–17, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Koninklijke Philips N.V. Appeal Br. 2. Appeal 2021-000165 Application 14/647,493 2 CLAIMED INVENTION Appellant’s claimed invention generally relates to nuclear medical imaging and patient workflow. Spec. 1. Claims 1 and 11 are the independent claims on appeal. Claim 1, reproduced below, with modified formatting and bracketed notations, is illustrative of the claimed subject matter. 1. A nuclear medicine scanner system, comprising: [a] a repository storing prior patient data mined from data sources, the stored prior patient data including at least patient weights, radiopharmaceutical doses, scan protocols, scan durations, and wait times between administering the radiopharmaceutical dose and time of scanning, the prior patient data being grouped in the repository by patient characteristics with statistical information summarizing the patient data's being grouped; [b] a memory that stores executable instructions; [c] an intelligent scheduler comprising at least one processor configured to execute the instructions retrieved from the memory, wherein the instructions, when executed, cause the at least one processor to: [d] schedule a plurality of patients, each for an ordered nuclear medicine scanning procedure with a nuclear medicine scanning device, the scheduling being based on data mined from prior patients with like scanning procedures stored in the repository and in a scan time window which minimizes a patient dose; and [e] optimize a schedule of the plurality of patients for a day which includes adjusting a schedule of at least one patient of the plurality of patients to fit into an available time window of the schedule of the plurality of patients for a day by extending the scan time window and reducing the patient dose in correspondence with the extended scan time window to minimize the patient dose while producing a satisfactory image in the extended scan time window; Appeal 2021-000165 Application 14/647,493 3 [f] wherein the optimized schedule is displayed on a display device and/or transmitted to a workstation; and [g] a Positron Emission Tomography (PET) or Single Photon Emission Computed Tomography (SPECT) scanner for performing the ordered nuclear medicine scanning procedures for the plurality of patients in accord with the optimized schedule. Appeal Br. 30 (Claim App.). REJECTIONS 1. Claims 1–3, 5–13, and 15–17 are rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. 2. Claims 1–3, 6–13, 16, and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Maekawa (US 2004/0093252 A1, pub. May 13, 2004), Amberg (US 2012/0173259 A1, pub. July 5, 2012), and Agamaite (US 2013/0123567 A1, pub. May 16, 2013). 3. Claims 5 and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Maekawa, Amberg, Agamaite, and Thompson (US 2004/0039628 A1, pub. Feb. 26, 2004). ANALYSIS Patent-Ineligible Subject Matter Appellant argues claims 1–3, 5–13, and 15–17 as a group. Appeal Br. 5–21; Reply Br. 3–7. We select independent claim 1 as representative. The remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-000165 Application 14/647,493 4 35 U.S.C. § 101 Framework Section 101 An invention is patent eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Court’s two-part framework, described in Mayo and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India Appeal 2021-000165 Application 14/647,493 5 rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. Appeal 2021-000165 Application 14/647,493 6 USPTO Section 101 Guidance We are also guided by U.S. Patent and Trademark Office (“USPTO”) Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”), incorporated into the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019 (“MPEP”) in June 2020. “The guidance sets out agency policy with respect to the USPTO’s interpretation of the subject matter eligibility requirements of 35 U.S.C. [§] 101 in view of decisions by the Supreme Court and the Federal Circuit.” Guidance, 84 Fed. Reg. at 51.2 Although “[a]ll USPTO personnel are, as a matter of internal agency management, expected to follow the guidance,” the Guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO.” Id. The Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. at 50. Under USPTO Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including laws of nature, natural phenomena, and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b)) (“Step 2A, Prong One”); and (2) additional elements that integrate the 2 In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance, 84 Fed. Reg. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”) (available at https://www.uspto.gov/sites/default/ files/documents/peg_oct_update.pdf). Appeal 2021-000165 Application 14/647,493 7 judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2), 2106.04(d)) (“Step 2A, Prong Two”).3 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the additional elements, individually or in combination, provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An inventive concept ‘cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir. 2016)). Among the considerations in determining whether the additional elements, individually or in combination, amount to significantly more than the exception itself, we look to whether they add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field or simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. at 56. Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework and Step 2A, Prong One of USPTO Guidance, the Examiner determines that exemplary independent claim 1 recites broadly “determining an optimal schedule for 3 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54–55; MPEP § 2106.04(d). Appeal 2021-000165 Application 14/647,493 8 patients ordered to use a medical scanning device.” Final Act. 3. According to the Examiner, optimizing a schedule of patients for a day including adjusting the schedule for a patient to fit into an available time window, as drafted, under its broadest reasonable interpretation, covers a method of organizing human activity which includes the user using the obtained information to generate a schedule for a plurality of patients by following rules and instructions such as extending the scan time window and reducing the patient dose. Id. at 3–4. Under Prong Two of USPTO Guidance, the Examiner determines that the identified judicial exception is not integrated into a practical application because the additional elements “are recited at a high-level of generality such that it amounts to no more than mere instructions to apply the exception using a generic computer component.” Id. at 4. In response, Appellant asserts that “the claimed process that results in an efficient scheduling with a proper dose by the nuclear medicine scanning device represents an improvement to the technical field of healthcare management, and more particularly, improvements to the field of nuclear medicine.” Appeal Br. 8 (emphasis omitted). Appellant also asserts that independent claim 1 “is directed to a particular ordered process at least in part that may be performed by a processor (effectively rendering it a special purpose computer) that includes specific sequence of the various process steps.” Id. at 9 (emphasis omitted). Under the first step of the Mayo/Alice framework and Step 2A of the USPTO Guidance, we first determine to what claim 1 is directed, i.e., whether claim 1 recites an abstract idea and if so, whether claim 1 is directed to that abstract idea. The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the Appeal 2021-000165 Application 14/647,493 9 specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claim is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See Enfish, LLC, 822 F.3d at 1335–36. Here, it is clear from the Specification, including the claim language, that claim 1 focuses on an abstract idea, and not on any improvement to technology and/or a technical field. Reciting a Judicial Exception In making this determination, we note that the Specification is titled “INTELLIGENT NUCLEAR MEDICINE PATIENT WORKFLOW SCHEDULER,” and is related generally “to nuclear medical imaging and patient workflow,” and more specifically, “the scheduling of patients undergoing diagnostic imaging procedures using a radiopharmaceutical.” Spec. 1. According to the Specification, “[s]ome sites set scheduling and imaging workflows based on expected system throughput.” Id. at 2. The Specification recognizes that “[t]he schedule usually includes block scheduling based on industry averages fixed at the time of workflow creation.” Id. However, the Specification points out that workflows typically “do not accommodate patient specific factors” and “do not factor the declining strength of a radiopharmaceutical due to the half-life and the impact on the scan time.” Id. To address these drawbacks, the present invention provides an “improved intelligent nuclear medicine workflow scheduler” which offers advantages such as “dose optimization for Appeal 2021-000165 Application 14/647,493 10 individual patients” and “optimized system throughput based on intelligent scheduling.” Id. at 3. Consistent with this disclosure, independent claim 1 recites “[a] nuclear medicine scanner system” comprising “a repository,” “a memory,” “an intelligent scheduler comprising at least one processor,” and “a Positron Emission Tomography (PET) or Single Photon Emission Computed Tomography (SPECT) scanner” (limitations [a]–[c], [g]). The system includes processes to “schedule a plurality of patients” based on stored data and “optimize a schedule of the plurality of patients,” (limitations [d] and [e]) and display the results i.e., “the optimized schedule is displayed on a display device and/or transmitted” (limitation [f]). Appeal Br. 30 (Claim App.). When considered collectively and under the broadest reasonable interpretation, independent claim 1, as summarized above, recites a process of analyzing stored information by scheduling a plurality of patients and optimizing scheduling of patients and displaying the optimized schedule.4 This is an abstract idea which may be characterized as a “[c]ertain method[] of organizing human activity— . . . managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions).” Guidance, 84 Fed. Reg. at 52; MPEP § 2106.04(a)(2)(II). This is consistent with the Examiner’s characterization. Final Act. 3–4. 4 We note that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. at 1241. Appeal 2021-000165 Application 14/647,493 11 The courts have held similar concepts to be abstract. For example, the Federal Circuit has held abstract the concepts of collecting information, analyzing it, and displaying certain results in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1351–54 (Fed. Cir. 2016) (Claim for detecting events by receiving, detecting, analyzing, displaying, accumulating, and updating data, and deriving a composite indicator from that data was directed to the abstract idea of “collecting information, analyzing it, and displaying certain results of the collection and analysis.”), organizing patient health information in In re Salwan, 681 F. App’x 938, 941 (Fed. Cir. 2017) (nonprecedential) (claims to storing, communicating, transferring, and reporting patient health information in a network held as an abstract idea of billing insurance companies and organizing patient health information), collecting and comparing known information in Classen Immunotherapies, Inc. v. Biogen IDEC, 659 F.3d 1057 (Fed. Cir. 2011) (reviewing and comparing published information on the effects of immunization schedules in treated and control groups of mammals), personal management, resource planning, or forecasting in In re Downing, 754 F. App’x 988, 993 (Fed. Cir. 2018), and customizing information based on known user information in Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1369–70 (Fed. Cir. 2015). Having concluded that claim 1 recites a judicial exception, i.e., an abstract idea, in determining whether the claim is directed to this abstract idea, we next consider whether the claim recites additional elements that integrate the judicial exception into a practical application. Appeal 2021-000165 Application 14/647,493 12 Integration into a Practical Application We look to whether the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception,” i.e., “integrates a judicial exception into a practical application.” Guidance, 84 Fed. Reg. at 54; MPEP § 2106.04(d). Here, the Examiner identifies the additional elements as “a repository, memory, and an intelligent scheduler comprising a processor” and “a Positron Emission Tomography (PET) or Single Photon Emission Computed Tomography (SPECT) scanner.” Final Act. 4. The Examiner notes that “[t]he repository, memory and scheduler are recited at a high-level of generality such that it amounts to no more than mere instructions to apply the exception using a generic computer component.” Final Act. 4. See also Spec. 8, 9 (“The workstation . . . can be a desktop computer, a laptop, a tablet, a mobile computing device, a smartphone, and the like” and “[t]he intelligent scheduler 2 and various units . . . are suitably embodied by an electronic data processing device, such as the electronic processor or electronic processing device 18 of the workstation 14, or by a network-based server computer operatively connected with the workstation 14 by the network 22, or so forth.”) The Examiner also notes that the “PET or SPECT scanner is also recited as a routine scanner device and amounts to no more than mere instructions to apply an exception because the scanner is machinery which is used as a tool used in its ordinary capacity.” Final Act. 4; see also Spec. 1. We agree with the Examiner. We also agree with the Examiner that Appeal 2021-000165 Application 14/647,493 13 the additional elements of storing prior patient data in the repository and displaying the data on a display device [] amounts to no more than mere instructions to apply the exception because the claim invokes computers or other machinery as a tool to perform the process including storing and transmitting information. Final Act. 5 (citing MPEP § 2106.05(f)(2).) As is clear from the Specification, there is no indication that the processes recited in claim 1 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any asserted inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise ineligible claim patent-eligible.”); see also Spec. 8, 9–10. Independent claim 1, unlike the claims found non-abstract in prior cases, uses generic computer technology to receive and analyze information for the purpose of “schedul[ing] a plurality of patients, each for an ordered nuclear medicine scanning procedure . . . based on data mined from prior patients with like scanning procedures and in a time window which minimizes the patient dose” (Spec. 3), and does not recite an improvement to a particular computer technology. Cf. McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (Finding claims not abstract because they “focused on a specific asserted improvement in computer animation.”). Appellant argues that “the claimed process that results in an efficient scheduling with a proper dose by the nuclear medicine scanning device Appeal 2021-000165 Application 14/647,493 14 represents an improvement to the technical field of healthcare management, and more particularly, improvements to the field of nuclear medicine such as PET scans.” Appeal Br. 8 (emphasis omitted); Reply Br. 3–4. Appellant points out improvements, as listed in the Specification, as “dose optimization for individual patients,” “optimized system throughput based on intelligent scheduling,” “use of best practices in localized incremental workflow improvements to scheduling nuclear medicine scanning procedures,” and “accommodating site differences and/or customizations.” Appeal Br. 9; Reply Br. 4 (citing Spec. 3–4). We are not persuaded by Appellant’s argument. Initially, we note that the claims are unlike the claims found patent- eligible in Vanda Pharmaceuticals Inc. v. West-Ward Pharmaceuticals, 887 F.3d 1117 (Fed. Cir. 2018). Appellant alleges that the claimed system provides “dose optimization,” “optimized system throughput,” “use of best practices,” and “accommodating site differences” (Appeal Br. 9, 18; Reply Br. 4). However, rather that accomplishing some beneficial treatment (as in Vanda), the claims here appear to be oriented toward maximizing service providers’ convenience and revenue. Therefore, we agree with the Examiner that the problems addressed in the [S]pecification are constraints to determining a schedule and not a technical problem in the field of nuclear medicine/PET scans but instead is a scheduling problem. The improvements described in the [S]pecification are directed to improving the scheduling of the procedures and not to actual improvements in the PET scanning machine or PET scanning procedures or even to the technical field of nuclear medicine. Appeal 2021-000165 Application 14/647,493 15 Ans. 4; cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (holding that claims are directed to “the abstract idea of offer- based price optimization”); Enfish, 822 F.3d at 1336 (focusing on whether the claim is “an improvement to [the] computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity”). See also Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 893 (Fed. Cir. 2019) (“The ability to run a more efficient advertising campaign, even if novel, and even if aided by conventional computers, is an advance ‘entirely in the realm of abstract ideas,’ which we have repeatedly held to be ineligible.”). The “focus” of claim 1 is not “on the specific asserted improvement in computer capabilities” (Enfish, 822 F.3d at 1336), but rather on using the components as tools to implement the abstract idea in the particular field of nuclear medicine. See Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016) (“The Supreme Court and [the Federal Circuit] have repeatedly made clear that merely limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract.”). Appellant further argues that adjustments to workflow and timing and dosage requirements “are clearly improvements to the PET scanning procedures, which are not simply alterations of the time-aspects of the schedule, but also provide dynamic workflow alterations including dosages provided to ensure the overall dose administered is accurate in the allocated time.” Reply Br. 4. However, as discussed above, the proffered improvements of claim 1 are on the specific asserted improvement in PET scanning, but rather on using the components as tools to implement the abstract idea in the particular field of PET scanning. Appeal 2021-000165 Application 14/647,493 16 Furthermore, the Specification discloses “[f]orecasting can include ‘what-if’ scenario where potential changes are evaluated for the impact to later or downstream scheduled patients,” (Spec. 12) and “forecasting unit 12 calculates the decay in the radiopharmaceutical and then forecasts a scan time adjustment based on the delayed start time.” Spec. 14. As stated by the Examiner, “determining of the proper dose for administration to a patient is not a technical field or technology but rather is the abstract idea and the improvement to the abstract idea itself.” Ans. 6. As discussed above, limiting the field of use of the abstract idea to a particular existing technological environment does not render the claims any less abstract. See also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018) (“Here, in contrast, the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results.”). Appellant asserts that “information is not simply collected, analyzed and displayed” (Appeal Br. 9 (emphasis omitted)); but instead, the claimed “system beneficially determines the dose commensurate with the scan time window in order to produce a useful image in the allotted scan time.” Id. at 10. However, the information as listed by the Appellant (id. at 10–11) is simply stored in the repository, i.e., collected. See Spec. 8. More particularly, forecasting unit 12 and the intelligent scheduler 2 use mined data loaded into the local repository 3 to optimize the schedule and forecast. The local repository includes data mined from data sources such as log files 30 of the scanning device 4, the Hospital Information System 8, a Picture Archiving and Communication Appeal 2021-000165 Application 14/647,493 17 System (PACS) and/or Radiology Information System (RIS) 32. A schedule miner unit 34 extracts, transforms, and loads the data to the local repository 3. Id. As described in the Specification, the information can then be reviewed, i.e., analyzed. See id. at 9 (“When scheduling a new patient procedure, the healthcare practitioner can review information provided by the intelligent scheduler and/or forecasting unit from the local repository to determine a best time and duration for the new patient.”). See also id. at 6: The intelligent scheduler marks as unavailable non-operating hours and staffing breaks. The intelligent scheduler can optimize the schedule by extending the scan time of a patient to fill otherwise unused time and reducing the amount of the administered radiopharmaceutical accordingly. For example, if a patient scan time would leave a 5 minute gap before a break, then the scan time can be extended by 5 minutes and the dose of the radiopharmaceutical reduced correspondingly. The Specification also discloses displaying the schedule “[t]he forecasting unit determines the impact of any changes or proposed changes to the schedule and displays the result on a display device 16.” Id. at 8. Thus, we are not persuaded of error in the Examiner’s determination that the additional elements of claim 1 do not integrate the judicial exception into a practical application, as the term is used in USPTO Guidance, and we are not persuaded of error in the Examiner’s determination that claim 1 is directed to an abstract idea. Step Two of the Mayo/Alice Framework Under the second step in the Alice framework and USTPO Guidance Step 2B, we “[e]valuat[e] additional elements to determine whether they amount to an inventive concept [which] requires considering them both individually and in combination to ensure that they amount to significantly Appeal 2021-000165 Application 14/647,493 18 more than the judicial exception itself.” MPEP § 2106.05(I). Here, the Examiner determines that “the additional elements when considered both individually and as an ordered combination do not amount to significantly more than the abstract idea.” Final Act. 5–6. The Examiner states that the additional elements (i.e., repository, memory, intelligent scheduler, and scanner) “are recited as generic computer components that perform routine functions that are well-known in the industry (i.e., receiving data, scheduling, forecasting, tracking, etc.)” Id. at 6. The Examiner finds that “[t]hese elements recite a generic computing system by reciting an electronic processing device of the workstation or a network-based server” and that “the scanner is disclosed to be any PET or SPECT scanning device or the like.” Id. (citing Spec. 5, 8–9). The Examiner also states that “the additional element of storing prior patient data in the repository and displaying the schedule on a display device [] are elements that are well-understood, routine and conventional computer functions.” Final Act. 6–7 (citing MPEP §2106.05(d)(II)(iv)). See also Elec. Power, 830 F.3d at 1355 (gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent-eligible invention); OIP Techs, 788 F.3d at 1363 (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 activit[ies],’ either by requiring conventional computer activities or routine data-gathering steps.”) (alteration in original); SAP Am., 898 F.3d at 1167– 68 (“[S]electing certain information, analyzing it using mathematical Appeal 2021-000165 Application 14/647,493 19 techniques, and reporting or displaying the results of the analysis” were “basic functions” of a computer.). Appellant asserts that “the burden of showing that various claim elements or combination of elements are well-understood, routine and conventional to a skilled artisan in the relevant field, in accordance with the second part of the Alice analysis” has not been carried out. Appeal Br. 14. However, we agree with the Examiner that “[t]he rejection includes a citation to the specification which demonstrates the computer components are well-understood, routine and conventional elements” and that citations to court decisions were provided for support. Ans. 7. We find supported the Examiner’s determination that the limitations of claim 1, taken individually, or as an ordered combination, do not amount to significantly more than the judicial exception. Final Act. 6–7; Ans. 7–8. We agree with and adopt the Examiner’s determination. Appellant argues that the previously discussed “improvements amount to ‘significantly more’ than the assertedly abstract idea itself, transforming the abstract idea into a patent-eligible application.” Appeal Br. 12. However, as discussed above with respect to a lack of practical application, the improvements lie in scheduling and in managing workflow, i.e. managing personal behavior or relationships or interactions between people, not in an improvement to the scanning technology. See Elec. Power, 830 F.3d at 1355 (gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent- eligible invention); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019) (data gathering and displaying are well- understood, routine, and conventional activities); OIP Techs, 788 F.3d at Appeal 2021-000165 Application 14/647,493 20 1363 (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 activit[ies],’ either by requiring conventional computer activities or routine data-gathering steps” (alteration in original)). Appellant argues that claim 1 “is directed to a particular ordered process at least in part that may be performed by a processor (effectively rendering it a special purpose computer) that includes specific sequence of the various process steps.” Reply Br. 5–6 (emphasis omitted). However, simply programming a general-purpose computer to perform an abstract idea does not provide an “inventive concept” such that the claim amounts to significantly more than the abstract idea. See Alice, 573 U.S. at 221–27 (applying an abstract idea, such as an algorithm, on a general purpose computer is not enough to transform a patent-ineligible abstract idea into a patent-eligible invention); EON Corp. IP Holdings LLC v. AT&T Mobility LLC, 785 F.3d 616, 623 (Fed. Cir. 2015) (“A general purpose computer is flexible—it can do anything it is programmed to do.”). Viewed as a whole, independent claim 1 recites a system that includes a series of steps for analyzing stored data to schedule a plurality of patients and optimize a schedule of the plurality of patients, and then displaying the optimized schedule. The steps are performed by a conventional computer, which merely includes instructions to implement the abstract idea on a computer (or merely uses a computer as a tool to perform an abstract idea). Instead of improving the computer or technology or technical field, independent claim 1 amounts to nothing significantly more than an Appeal 2021-000165 Application 14/647,493 21 instruction to apply the abstract idea using generic computing elements, which, under our precedents, is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 226. We are not persuaded, on the present record, that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we sustain the Examiner’s rejection of independent claims 1, and claims 1–3, 5– 13, and 15–17, which fall with independent claim 1. Obviousness Independent claim 1 and dependent claims 2, 3, and 6–10 We are persuaded by Appellant’s argument that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because the combination of Maekawa, Amberg, and Agamaite fails to disclose or suggest limitation [e] of claim 1, which recites optimize a schedule of the plurality of patients for a day which includes adjusting a schedule of at least one patient of the plurality of patients to fit into an available time window of the schedule of the plurality of patients for a day by extending the scan time window and reducing the patient dose in correspondence with the extended scan time window to minimize the patient dose while producing a satisfactory image in the extended scan time window. Appeal Br. 21–22 (emphasis omitted). The Examiner maintains the rejection is proper, and cites Agamaite, at paragraphs 179–180, 183, 11, and 169, as disclosing the argued limitation. See Final Act. 12; Ans. 8–9. However, we agree with Appellant that there is nothing in the cited portions that discloses or suggests the argued limitation. Appeal 2021-000165 Application 14/647,493 22 In making this determination, we note that Maekawa is directed to an examination scheduling program for a nuclear medical examination apparatus that includes “a step of creating an examination schedule to avoid overlapping in time of timing of the medication and the examinations . . . while maintaining fixed a [sic] waiting time from the medication to the examination set for each patient according to a type of examination.” Maekawa, Abstract. Maekawa discloses that “the schedule for each patient is expressed by a pattern having a time span according to the type of examination, the pattern presenting the timing of the medication, the waiting time and the contents of the examination.” Id. ¶ 15. In Maekawa, “[t]he processing unit 13 arranges the examinations in the respective patterns FG, i.e. the timing of collecting transmission data TD and the timing of collecting emission data ED, in a way to avoid overlapping in time therebetween.” Id. ¶ 59. Maekawa describes that “[a] re-scheduling may be made easily to cope with an alteration since the current schedule may be grasped immediately only by looking at the arrangement of patterns FG.” Id. ¶ 62. Amberg is directed to a system for scheduling medical procedures, which includes calculating “an estimated procedure time for the patient to undergo the procedure by using the difficulty score to adjust the base procedure time.” Amberg ¶ 3. Amberg’s system “includes scheduling an amount of time corresponding to the estimated procedure time on a procedure schedule.” Id. Amberg describes “increasing or decreasing the base time allotment by a fixed amount or a percentage of the base time allotment based on the difficulty score of the patient.” Id. ¶ 19. Appeal 2021-000165 Application 14/647,493 23 Agamaite is directed to a system for planning and monitoring multi- dose radiopharmaceutical usage on radiopharmaceutical injectors in which the main objective is to optimize a schedule of injection procedures to minimize the amount of radiopharmaceutical that is wasted and maximize the number of injection procedures that are performed with a given radiopharmaceutical configuration. Accordingly, the system utilizes a two step procedure to achieve this objective. First, an operator loads a schedule of injection procedures into the system that includes a time and a required activity level for each of the procedures and provides a user with a plurality of multi-dose radiopharmaceutical container configurations that can be used to meet his needs . . . . Id. ¶ 192. In describing the second step, Agamaite discloses that “if the schedule changes during the injection procedures, the system then recommends a new schedule that optimizes the number of patient scans and/or injections that can be performed by suggesting changes in the radioactive dose and/or the infusions times for each future patient or for the entire schedule.” Id. ¶ 193. Agamaite describes “the schedule 1302 may include the time of an injection procedure . . . for each patient, and an activity . . . removed from the multi-dose container 902 of radiopharmaceutical for each patient.” Agamaite ¶ 156. Agamaite further describes “the schedule 1302 is editable after being initially provided to accommodate add-on patients, cancellations, time modifications to patients already provided on the planned patient schedule,” for example, and “the algorithm . . . is run on a new schedule 1302’ to produce all container volume and activity pairs at a specified assay time that can meet the new schedule 1302’ taking into account injection system constraints.” Id. ¶ 169. Agamaite provides a scheduling example in Appeal 2021-000165 Application 14/647,493 24 which “[i]f the current multi-dose container configuration is unable to accommodate such an injection procedure . . . a range of activity levels 1146, such as 18–430 MBq, is presented to the operator that would allow the operator to schedule a patient at 16:00.” Id. ¶ 179. In this example, “[i]f this activity level is acceptable to operator, the operator can adjust the injection procedure at 16:00 to have an activity level anywhere between 18-430 MBq. If this level is unacceptable, the operator must cancel the procedure or adjust the infusion time.” Id. We have reviewed the cited portions of Agamaite and agree with Appellant that the cited portions of Agamaite fail to disclose or suggest limitation [e] of independent claim 1. The Examiner states that Agamaite teaches that the schedule is modified by adjusting the injection time for the scheduled injection procedure in the schedule window ([179]), which equates to an adjustment of the scan time window needed to perform the scan procedure as an adjustment to the total injection time can only be extending or shortening the window based on all of the variables. Ans. 8. However, we disagree that adjusting the injection time equates to an adjustment of the scan time window needed to perform the scan procedure. As stated in Agamaite, “[a]fter injection and often after an additional delay to allow the radiopharmaceutical to reach and be absorbed by the desired regions of interest in the body, the patient is typically placed on a moveable bed that slides by remote control into a circular opening of an imaging scanner.” Agamaite ¶ 15. Likewise, Maekawa discloses “a certain waiting time is required until an emission data collecting examination after the medication.” Maekawa ¶ 4. A schedule change, or adjustment, in the time the injection is administered to the patient may change accordingly the time Appeal 2021-000165 Application 14/647,493 25 of the beginning of the scanning procedure, but it does not follow that an extension of the scan time, i.e. duration of the scanning time, would also occur. Thus, the combination of Maekawa, Amberg, and Agamaite does not disclose or suggest limitation [e] of claim 1. In view of the foregoing, we do not sustain the Examiner’s rejection of independent claim 1 under 35 U.S.C. § 103(a) as unpatentable over Maekawa, Amberg, and Agamaite. For the same reasons, we also do not sustain the Examiner’s rejection of dependent claims 2, 3, and 6–10. Independent claim 11 and dependent claims 12, 13, 16, and 17 Independent claim 11 includes a limitation substantially similar to independent claim 1’s limitation [e] discussed above, and the Examiner relies on the same rationale in rejecting independent claim 11. See Final Act. 9–13. Therefore, we do not sustain the Examiner’s rejection of independent claim 11, and dependent claims 12, 13, 16, and 17 for the same reasons set forth with respect to independent claim 1. Dependent claims 5 and 15 Claims 5 and 15 depend directly from independent claims 1 and 11 respectively, and thus, incorporate limitation [e], as recited in independent claim 1. The Examiner’s rejection with respect to Thompson, in combination with Maekawa, Amberg, and Agamaite, as applied to claims 1 and 11, does not cure the above-discussed shortcomings of Maekawa, Amberg, and Agamaite identified by Appellant. Thus, we do not sustain the Examiner’s rejection of dependent claims 5 and 15 under 35 U.S.C. § 103(a) for the same reasons set forth above with respect to independent claim 1. Appeal 2021-000165 Application 14/647,493 26 CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–3, 5–13, 15–17 101 Eligibility 1–3, 5–13, 15–17 1–3, 6–13, 16, 17 103 Maekawa, Amberg, Agamaite 1–3, 6–13, 16, 17 5, 15 103 Maekawa, Amberg, Agamaite, Thompson 5, 15 Overall Outcome 1–3, 5–13, 15–17 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