Lilla Boroczky et al.

Patent Trials and Appeals Board

Sep 2, 2021

2020002771 (P.T.A.B. Sep. 2, 2021)

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.
13/993,419 06/12/2013 Lilla Boroczky 2010P01174WOUS 1087
24737 7590 09/02/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
1600 Summer Street
5th Floor
Stamford, CT 06905
EXAMINER
RAYYAN, SUSAN F
ART UNIT PAPER NUMBER
2167
NOTIFICATION DATE DELIVERY MODE
09/02/2021 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 LILLA BOROCZKY, MARK R. SIMPSON,
YE XU, and MICHAEL CHUN-CHIEH LEE
___________

Appeal 2020-002771
Application 13/993,419
Technology Center 2100
____________

Before ERIC B. CHEN, JEREMY J. CURCURI, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 10–14, 21, and 23–30, which
constitute all the claims pending in this application. Claims 4–9, 15–20, and
22 has been cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to instructions operable to receive a current
patient set of data relating to a current patient, comparing the current patient
set of data to previous patient sets of data, selecting one of the previous
patient sets of data based on a level of similarity between the selected
previous patient set of data and the current patient set of data, and provide
the selected previous patient set of data to a user. (Abstract.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter, with disputed limitations in italics, and bracketing added:
1. A non-transitory computer-readable medium that
includes a program that, when executed by a processing system,
causes the processing system to:
[i] receive a current patient set of data relating to a
current patient;
[ii] receive a plurality of previous patient sets of data;
each of the previous patient sets of data corresponding to a
previous patient;
[iii] determining a first numerical value associated with
each data element of the current patient set of data and a second

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as
Koninklijke Philips Electronics N.V. (Appeal Br. 2.)
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numerical value associated with a corresponding data element
of each of the previous patient sets of data;
[iv] compare the current patient set of data to each of the
plurality of previous patient sets of data by determining a set of
differences between the first numerical value associated with
each data element of the current patient set of data and the
second numerical values of each data element of each of the
previous patient sets of data;
[v] determine a level of similarity for each of the
plurality of previous patients based on the determined set of
differences of each of the plurality of previous patient sets of
data relative to the current patient set of data;
[vi] select a plurality of the previous patient sets of data
based on the level of similarity between the selected plurality of
previous patient sets of data and the current patient set of data;
[vii] generate a method of treatment plan based on
corresponding treatment plans of a subset of the plurality of
selected previous patient data sets;
wherein a first element of the method of treatment
plan is copied from a first treatment plan of a first patient
of the subset of the plurality of selected previous patients,
wherein a second element of the method of
treatment plan is copied from a second treatment plan of
a second patient of the subset of the plurality of selected
previous patients,
wherein the second element is an element that is:
related to an attribute of the current patient
that differs from a corresponding attribute of the
first patient, and
related to an attribute of the current patient
that is similar to a corresponding attribute of the
second patient.

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REJECTIONS
Claims 1–3, 10–14, 21, and 23–30 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter.

OPINION
We are unpersuaded by Appellant’s arguments (Appeal Br. 8–11; see
also Reply Br. 2–5) that independent claims 1, 12, and 26 are directed to
patent-eligible subject matter under 35 U.S.C. § 101.
With respect to independent claims 1, 12, and 26, the Examiner
determined that “[t]hese claim limitations recite an abstract idea and fall
within the enumerated group of a Mental Process.” (Final Act 3; see also
Ans. 5.) In particular, the Examiner determined the following:
The claim limitations provide the steps of receiving
current/previous patient data, determining first value associated
with current data and second value associated with previous data
and comparing it to previous patient data to select previous
patient data based on similarity, a treatment plan is then
generated based on the attributes of the patient and attributes of
treatment plans of the previous patients which is a mental process
(for example a doctor determines an appropriate treatment plan
for a patient based at least in part with previous treatment plans)
and thus grouped as a mental process, specifically of observation
and evaluation.
(Ans. 5–6.)
[A] doctor in the process of determining a treatment plan
would compare the current patient’s type of disease with a prior
group of previous patients and determine which have the same
disease and selecting those that match. The Doctor mentally
performs the assigning numeric values of 1 or 0 for a yes or no
determination. The Doctors may compare the current patients
with previous patients to determine which are similar in real time
during the current patient appointment.
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(Id. at 7.)
In addition as the Doctor progresses through the process
of determining the best treatment plan for his current patient he
necessarily would consider various previous patient with same or
similar features/data elements and the doctor has the option of
determining which elements of the previous treatment plans to
include with the current treatment plan.
(Id. at 10.) Moreover, the Examiner determined that “the additional
elements in the claim elements of the computer and processor evaluated
individually and in combination do not amount to significantly more.”
(Ans. 15.) We agree with the Examiner’s determinations and ultimate
conclusion that the claims are directed to patent-ineligible subject matter.
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 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 Supreme Court’s two-step framework, described in Mayo
and Alice. Id. 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.”).
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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
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); 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
Supreme 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 176; 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 Supreme 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. at 191 (citing Benson and Flook); see also, 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.”).
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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 (citation 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.
The PTO published revised guidance on the application of § 101.
USPTO’s 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE,
84 Fed. Reg. 50 (Jan. 7, 2019); see also USPTO, October 2019 Update:
Subject Matter Eligibility, 84 Fed. Reg. 55942 (Oct. 17, 2019). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. 2019)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See 84 Fed. Reg. 56.

Are the claims at issue directed
to a patent-ineligible concept?
Step One
Claim 1 is a computer-readable medium claim, which falls within the
“manufacture” category of 35 U.S.C. § 101. Claim 12 is a system claim,
which falls within the “machine” category of 35 U.S.C. § 101, and claim 26
is a method claim, which fall within the “process” category of 35 U.S.C.
§ 101. Therefore, each of claims 1, 12, and 26 falls within one of the four
statutory categories of patentable subject matter identified by 35 U.S.C.
§ 101.
Although claims 1, 12, and 26 fall within the statutory categories, we
must still determine whether the claims are directed to a judicial exception,
namely an abstract idea. See Alice, 573 U.S. at 216. Thus, we must
determine whether the claims recite a judicial exception and whether the
exception is integrated into a practical application. See 84 Fed. Reg. at 52–
55. If a claim recites a judicial exception without integrating the judicial
exception into a practical application, the claim is directed to a judicial
exception under the first step of the Alice/Mayo test. See id.

Step 2A, Prong One
Independent claim 1 is a computer-readable medium claim, which
includes programming to execute the following steps: “[i] receive a current
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patient set of data relating to a current patient,” “[ii] receive a plurality of
previous patient sets of data; each of the previous patient sets of data
corresponding to a previous patient,” “[iii] determining a first numerical
value associated with each data element of the current patient set of data and
a second numerical value associated with a corresponding data element of
each of the previous patient sets of data,” and “[iv] compare the current
patient set of data to each of the plurality of previous patient sets of data by
determining a set of differences between the first numerical value associated
with each data element of the current patient set of data and the second
numerical values of each data element of each of the previous patient sets of
data.”
Thus, the steps of claim 1 involve mental processes. In particular, the
steps of claim 1 can be performed either by human thought alone, by a
human using pen and paper, or by humans without a computer. For
example, a physician who has treated two previous patients, treats a current
patient by taking the current patient’s vital signs, including temperature,
pulse, and blood pressure. The physician diagnoses the current patient as
having high blood pressure, but with no other medical conditions. The
physician recalls that two of the previous patients were also diagnosed with
high blood pressure—one previous patient has no other medical conditions,
while the other previous patient has asthma.
Independent claim 1 further executes the following steps: “[v]
determine a level of similarity for each of the plurality of previous patients
based on the determined set of differences of each of the plurality of
previous patient sets of data relative to the current patient set of data,” “[vi]
select a plurality of the previous patient sets of data based on the level of
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similarity between the selected plurality of previous patient sets of data and
the current patient set of data,” and “[vii] generate a method of treatment
plan based on corresponding treatment plans of a subset of the plurality of
selected previous patient data sets.”
Likewise, these remaining method steps of claim 1 involve mental
processes. For example, the physician compares the high blood pressure
diagnosis of the current patient with the high blood pressure diagnosis of the
two previous patients—the one difference being that one of the previous
patients has asthma. The physician recalls that the previous patient without
asthma was prescribed either a diuretic or a beta blocker, while the patient
with asthma was prescribed a diuretic, because the beta blocker can worsen
asthma symptoms. Similar to the previous patient without asthma, the
physician prescribes either a diuretic or beta blocker to the current patient.
Because steps of claim 1 can be performed either by human thought
alone, by a human using pen and paper, or by humans without a computer,
claim 1 recites at least one mental process, which is an abstract idea. See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed.
Cir. 2011) (“[U]npatentable mental processes” include “steps [that] can be
performed in the human mind, or by a human using a pen and paper”); see
also Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d. 1314,
1324 (Fed. Cir. 2016) (“[t]he series of steps covered by the asserted claims .
. . could all be performed by humans without a computer”).
Accordingly, claim 1 recites a judicial exception. Claims 12 and 26
recite limitations similar to those discussed with respect to claim 1. Thus,
claims 12 and 26 also recite a judicial exception.

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Step 2A, Prong Two
Because claims 1, 12, and 26 recite a judicial exception, we next
determine if the claims recite additional elements that integrate the judicial
exception into a practical application.
The preamble of independent claim 1 recites “[a] non-transitory
computer readable medium that stores program code that is configured to,
when executed by a computing system” (emphases added) to perform
multiple steps. Independent claim 12 recites the following: “a database that
stores a plurality of previous patient sets of data,” and “a processing system,
including a processor and memory, that includes: a user interface that
receives a current patient set” (emphases added). Independent claim 26 does
not recite additional element in the form of computer hardware.
The recited additional elements, including “computer readable
medium,” “computing system,” “database,” “processing system,”
“memory,” and “user interface” are merely tools for performing the recited
abstract idea. See Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d
1253, 1262 (Fed. Cir. 2016) (“[T]he claims are directed not to an
improvement in cellular telephones but simply to the use of cellular
telephones as tools in the aid of a process focused on an abstract idea.”).
Accordingly, claims 1, 12, and 26 do not recite additional elements
that integrate the judicial exception into a practical application.

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Is there something else in the claims
that ensures that they are directed to significantly
more than a patent ineligible concept?
Step 2B
Because claims 1, 12, and 26 are directed to a judicial exception, we
next determine, according to Alice, whether these claims recite an additional
element, or combination of elements that is enough to ensure that the claim
is directed to significantly more than a judicial exception.
The preamble of independent claim 1 recites “computer readable
medium” and “computing system.” Similarly, independent claim 12 recites
“a database,” “a processing system,” “a processor,” a “memory,” and “a user
interface.”
With respect to the claimed additional elements, Appellant’s
Specification discloses the following:
A non-transitory computer-readable storage medium
stores a set instructions executable by a processor.
(Spec. 1:20–21; see also Abstract.)
The current patient information 110 is provided to a
treatment planning workstation 120, which is a computing
system (e.g., a combination of hardware and software) used by a
doctor or other medical professional to plan treatment for the
current patient. The treatment planning workstation 120 is
similar to known systems presently used by medical
professionals, except as will be described hereinafter.
(Spec. 4:19–25.)
Those of skill in the art will understand that the similarity
search engine 130, the previous patient database 140, and the
plan generation system 150 may be implemented in various
ways, including as hardware and/or software elements of the
treatment planning workstation 120, or as separate hardware
and/or software components, without impacting their functions.
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For example, previous patient database 140 can be embodied as
any form of known hierarchical or relational database stored on
any type of known computer-readable storage device.
(Spec. 5:24 to 6:1.)
For example, the current patient information 110 is
generated contemporaneously with the performance of the
exemplary method 200 (e.g., medical images taken at this time);
in another alternative situation, the current patient information
110 may have been generated previously, and may be stored in
any suitable manner (e.g., in hardcopy, in a computer database,
etc.).
(Spec. 6:12–18.)
Figure 3 illustrates an exemplary graphical user interface
300 by which results may be presented to a doctor (e.g., on a
display of the treatment planning workstation 120). The
graphical user interface 300 includes current patient information
310; the specific information shown may be customizable by the
user (e.g., doctor).
(Spec. 9:8–13.)
Those skilled in the art will understand that the above-
described exemplary embodiments may be implemented in any
number of manners, including, as a separate software module, as
a combination of hardware and software, etc. For example, the
similarity search engine 130 may be a program containing lines
of code that, when compiled, may be executed on a processor.
(Spec. 14:18–23.)
The generalized functional terms by which the additional elements are
described reasonably indicate that Appellant’s Specification discloses: (i) a
conventional storage medium; (ii) a conventional processor; (iii)
conventional treatment planning workstation 120 (or computing system);
(iv) conventional previous patient database 140 (or a computer-readable
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storage device); (v) a conventional processor, which include a memory2; and
(v) conventional graphical user interface 300. Moreover, Figure 1 of
Appellant’s Specification illustrates system 110, which included treatment
planning workstation 120 (i.e., the claimed “processing system” (or
“computing system”), “processor,” “memory,” and “user interface”) and
previous patient database 140 (i.e., the claimed “database”) functioning as an
ordered combination.
In view of Appellant’s Specification, the claimed “computer readable
medium,” “computing system,” “a database,” “a processing system,” “a
processor,” a “memory,” and “a user interface” reasonably may be
determined to be generic, purely conventional additional elements.
Thus, claims 1, 12, and 26 do no more than require generic additional
elements to perform generic computer functions, rather than improve
computer capabilities.
First, Appellant argues that
[o]f particular note, doctors do not assign numeric values to each
attribute of the current patient and each of the attributes of a
plurality of prior patients, and do not identify prior patients
having similar attributes to the current patient based on a
comparison of these sets of numeric values.
(Appeal Br. 8; see also Reply Br. 4.) Contrary to Appellant’s arguments, as
found by the Examiner, a physician routinely diagnoses certain diseases (i.e.,
assigns a value of “1”) or, conversely, excludes certain diseases (i.e.,
assigned a value of “0”) based upon symptoms. (Ans. 7.) Moreover, as

2 One relevant definition of “processor” (or “CPU”) is “[t]he computational
and control unit of a computer,” such that “the term [CPU] encompasses
both the processor and the computer’s memory.” MICROSOFT® COMPUTER
DICTIONARY 132 (5th ed. 2002).
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found by the Examiner, the physician can mentally perform comparison of
the current patient to previous patients. (Id.) Appellant has provided
insufficient arguments or evidence as to why the Examiner’s findings are in
error.
Second, Appellant argues the following:
Of particular note, the doctor’s mental process of determining
which prior patient best matches the current patient is not an
algorithmic process; it is a mental process that is mostly
subjective and/or intuitive. The applicants respectfully maintain
that the applicants’ claimed method of identifying prior patients
that most closely resemble the current patient is very specific,
and does not correspond to the mental process conventionally
performed by doctors.
(Appeal Br. 9; see also Reply Br. 5.) However, Appellant’s arguments are
not commensurate in scope with claims 1, 12, and 26, because such claims
do not recite an “algorithm.” Moreover, even if the claims could be
construed as implicitly reciting an algorithm, a physician’s mental process
for diagnosing a disease can be characterized a series of steps—i.e., an
“algorithm.”3 (See Spec. 1:9–17.)
Third, Appellant argues the following:
the conventional mental process of determining a
treatment plan for a current patient does not include identifying
two prior patients having similar attributes to the current patient,
wherein one of these prior patients has a particular attribute that
matches the current patient’s attribute and the other prior
patient’s particular attribute does not match the current patient’s
attribute. The conventional mental process also does not include

3 One ordinary definition of “algorithm” is “a step-by-step procedure for
solving a problem.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 28
(10th ed. 1999.) Similarly, another definition of “algorithm” is “[a] finite
sequence of steps for . . . performing a task.” MICROSOFT® COMPUTER
DICTIONARY 23 (5th ed. 2002).
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selecting elements from the treatment plan of each of these
identified prior patients having opposing attributes.
(Appeal Br. 9.) However, even if Appellant is correct that the claims are
patentable over the prior art, Appellant improperly conflates the
requirements for eligible subject matter with the independent requirements
of novelty and non-obviousness. “The ‘novelty’ of any element or steps in a
process, or even of the process itself, is of no relevance in determining
whether the subject matter of a claim falls within the § 101 categories of
possibly patentable subject matter.” Diehr, 450 U.S. at 188–89.
Last, Appellant argues that “applicants’ specification clearly indicates
that the creation of a treatment plan that is based on the treatment plans of
multiple prior patients is an improvement in the field of computer-aided
medical diagnostic and planning treatment systems.” (Appeal Br. 11; see
also Reply Br. 2.) However, Appellant has not adequately explained why
the claim “purport[s] to improve the functioning of the computer itself” or
“any other technology or technical field.” Alice, 573 U.S. at 225. In
particular, Appellant has not explained why a decision about medical
treatment, which is a mental process, improves the function of a computer or
other technology.
Thus, we agree with the Examiner that claims 1, 12, and 26 are
directed towards patent-ineligible subject matter. Accordingly, we sustain
the rejection of independent claims 1, 12, and 26 under 35 U.S.C. § 101.
Claims 2, 3, 10, 11, 13, 14, 21, 23–25, and 27–30 depend from
independent claims 1, 12, and 26, and Appellant has not presented any
additional substantive arguments with respect to these claims. We sustain
the rejection of claims 2, 3, 10, 11, 13, 14, 21, 23–25, and 27–30 under 35
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U.S.C. § 101 for the same reasons discussed with respect to independent
claims 1, 12, and 26.

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–3, 10–14, 21,
and 23–30 under 35 U.S.C. § 101.

DECISION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 10–14,
21, 23–30
101 Eligibility 1–3, 10–14,
21, 23–30

Overall
Outcome
1–3, 10–14,
21, 23–30

TIME PERIOD FOR RESPONSE
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