Merry, Randy L. et al.

Patent Trials and Appeals Board

Nov 4, 2019

13836304 - (D) (P.T.A.B. Nov. 4, 2019)

APPLICATION NO. FILING DATE
13/836,304 03/15/2013
126679 7590 11/04/2019
Lane Powell, PC
601 S.W. Second Avenue
Suite 2100
Portland, OR 97204
FIRST NAMED INVENTOR
Randy L. Merry
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONERFORPATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
ATTORNEY DOCKET NO.
130424.008603
CONFIRMATION NO.
1093
EXAMINER
COLEMAN, CHARLES P.
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELNERYMODE
11/04/2019 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):
patents@lanepowell.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANDY L. MERRY, KEN PETERSON, MITCHELL A. SMITH,
DANA S. LEWIS, GERARD VERKERK, and JAMES WOOTTEN
Appeal 2018-008260
Application 13/836,304
Technology Center 3600
ERRATUM
The Decision on Appeal for the above-identified application mailed
November 4, 2019 contains an error.
The first paragraph on page 10 under heading "C. Analysis under Step
2A, Prong 2, of the 2019 Guidance" is removed and replaced with the
following:
Having determined that the claims recite a judicial
exception, we next consider whether the claims recite
"additional elements that integrate the uudicial] exception into
a practical application." See 2019 Guidance, 84 Fed. Reg. at
54; MPEP §§ 2106.05(a)-(c), (e)-(h). Here, we conclude that
claim 1 does not recite sufficient additional elements to
integrate the judicial exception into a practical application.
All other portions the Decision on Appeal remain unchanged. Any
confusion caused regarding this matter is regretted. If there any questions
pertaining to this Erratum, please contact the Patent Trial and Appeal Board
at 571-272-9797.
BAR
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RANDY L. MERRY, KEN PETERSON, MITCHELL A. SMITH,
DANA S. LEWIS, GERARD VERKERK, and JAMES WOOTTEN1
Appeal 2018-008260
Application 13/836,304
Technology Center 3600
Before JAMES B. ARPIN, SHARON PENICK, and RUSSELL E. CASS,
Administrative Patent Judges.
CASS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-32 under 35 U.S.C. § 101 and 35 U.S.C. § 103, which
constitute all the pending claims. Appeal Br. 12, 21. 2 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 lists Physio-Control, Inc. as the real party in
interest. Appeal Brief filed January 11, 2018 ("Appeal Br.") 3.
2 Rather than repeat the Examiner's positions and Appellant's contentions in
their entirety, we refer to the above mentioned Appeal Brief, as well as the
following documents for their respective details: the Non-Final Action
mailed May 15, 2017 ("Non-Final Act."); the Examiner's Answer mailed
June 8, 2018 ("Ans."); and the Reply Brief filed August 8, 2018 ("Reply
Br.").
Appeal 2018-008260
Application 13/836,304
BACKGROUND
The present invention relates to a clinical dashboard device and a
system for using the clinical dashboard device. Spec. ,i 17. The system
includes a server for providing clinical dashboard data to the clinical
dashboard device. Id. The clinical dashboard data may include data from
one or more medical devices, such as defibrillators. Id. The clinical
dashboard device includes a processor, a communication module configured
to enable communication between the processor and the server for receiving
the clinical dashboard data from the server, and a clinical dashboard client.
Id. The clinical dashboard client includes a clinical dashboard data manager
module, which includes an instance of a clinical dashboard data manager
service that provides managed clinical dashboard data between one or more
clinical dashboard applications and the server. Id. The instance of the
clinical dashboard data manager service also provides managed display of
managed clinical dashboard data on the display of the clinical dashboard
device. Id.
The system may use a priority rule to determine how to send data to
and display data on the clinical dashboard device. Id. ,i,i 92-94. For
example, the clinical dashboard data manager module can use priority rules
to arbitrate between requests for competing clinical dashboard applications
for clinical data from the server. For example, if one clinical dashboard
application module requests data for a feed of vital clinical data from the
web server, that request can be given higher priority than requests for non-
vital clinical data from another clinical dashboard application module. Id.
iJ 94.
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The clinical dashboard device also can provide interactive consulting
between a caregiver of a patient and a clinician. Id. ,i,i 117-122; Figs. 14-
19. Specifically, a window with an active video feed relevant to a treatment
may be displayed on the video dashboard device, along with vital patient
information, such as ECG data, which can be used by medical personnel to
provide coaching to the caregiver with the patient. Id. ,i,i 120-121, Figs. 17-
18.
Claim 1 is illustrative and is reproduced below with numerals added at
the beginning of each limitation, so that it may be referred to more clearly
throughout this decision:
1. A clinical dashboard device comprising:
[i] a processor;
[ii] a communication module configured to enable
communication between the processor and a server, to
receive clinical dashboard data from a medical device,
including vital patient physiological indicators
communicated in substantially real-time from the server and
to provide interactive consulting between a user of the
clinical dashboard device and a user of the medical device;
and
[iii] a clinical dashboard client including a clinical
dashboard data manager module including an instance of a
clinical dashboard data manager service that provides
managed clinical dashboard data between one or more
clinical dashboard applications and the server, the clinical
dashboard client configured to apply a priority rule to
arbitrate between requests from clinical dashboard
applications for clinical data from the server, the priority
rule giving priority to real-time vital patient physiological
indicators;
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[iv] the processor being configured to execute the
instance of the clinical dashboard data manager service to
provide managed clinical dashboard data between the one
or more clinical dashboard applications and the server.
Appeal Br. 30 (Claims Appendix).
PATENT ELIGIBILITY
1. SECTION] 0]
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-step framework, described in Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012), and
Alice. Alice, 573 U.S. at 217-18 (citing Mayo, 566 U.S. at 75-77). 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. Kappas, 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
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mental processes (Gottschalkv. 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 183 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 tum 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
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the [claim] is more than a drafting effort designed to monopolize the
[abstract idea]."' Id. (alterations in original) (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.
II. USP TO SECTION l O l GUIDANCE
The United States Patent and Trademark Office ("USPTO") published
revised guidance on the application of§ 101. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
("2019 Guidance"). Under the 2019 Guidance, we first look to whether the
claim recites the following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities 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)).
See 2019 Guidance, 84 Fed. Reg. at 52-55.
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 is not
"well-understood, routine, conventional" in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
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See 2019 Guidance, 84 Fed. Reg. at 56.
ANALYSIS
I. THE SECTION 101 REJECTION
A. The Examiner's Rejection and Appellant's Contentions
In the Non-Final Office Action, the Examiner rejects claims 1-32
under 35 U.S.C. § 101 as directed to non-statutory subject matter. Non-
Final Act. 3. The Examiner determines that claim 1 is directed to the
abstract idea of "methods for providing clinical data for clinical dashboard
display on a device," and "do not include additional elements that are
sufficient to amount to significantly more than the judicial exception
because the additional computer elements, which are recited at a high level
of generality, provide conventional computer functions that do not add
meaningful limits to practicing the abstract ideas." Id. at 4. Appellant
contends that claim 1 is not directed to an abstract idea and, even if it was,
that the claims are patent eligible because they recite elements that
meaningfully limit the purported abstract idea, and also recite improvements
to a specific technological field by claiming modifications that enhance the
operation of medical devices. Appeal Br. 19-21.
B. Analysis under Step 2A, Prong 1, of the 2019 Guidance
Under Step 2A, Prong 1, of the 2019 Guidance, we first must
determine whether any judicial exception to patent eligibility is recited in the
claim. The 2019 Guidance identifies three judicially excepted groupings:
(1) mathematical concepts, (2) certain methods of organizing human activity
such as fundamental economic practices, and (3) mental processes. 2019
Guidance, 84 Fed. Reg. at 52-53. Based on existing Supreme Court and
Federal Circuit precedent, the 2019 Guidance has identified "methods of
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organizing human activity" that may constitute an abstract idea, including
"fundamental economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations); managing
personal behavior or relationships or interactions between people (including
social activities, teaching, and following rules or instructions)." See 2019
Guidance, 84 Fed. Reg. at 52.
Here, claim 1 recites managing interactions between a user of a
medical device (such as a rescuer operating a defibrillator for a patient) and
various medical personnel, and therefore falls into the category of managing
interactions between people, which is one of the "certain methods of
organizing human activity" recognized by the 2019 Guidance. See id. at 52
n.13; Appeal Br. 30 (Claims Appendix).
More specifically, claim 1, limitation [ii] recites "receiv[ing] clinical
dashboard data from a medical device, including vital patient physiological
indicators communicated in substantially real-time from the server" in order
"to provide interactive consulting between a user of the clinical dashboard
device and a user of the medical device." Appeal Br. 30 (Claims Appendix).
The Specification explains that the user of the medical device may be a
rescuer located with the patient. See Spec. ,-J,-J 14, 30, 40, 52, and 71. The
Specification also explains that the server may be located in a hospital and
the clinical dashboard device may be located in the hospital emergency
room. Id. ,-i,-i 58, 79, and 143 Fig. 4B. The Specification further explains
that the patient physiological indicators can include the patient's temperature
or blood pressure. Id. ,-i 33. This limitation therefore recites communicating
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clinical data between one location and another, such as a rescuer at a patient
location and a hospital. This kind of communication can traditionally be
carried out between humans, such as having a rescuer call or set up a radio
link with a switchboard or other central location in a hospital, who can then
connect the rescuer to personnel in the hospital emergency room. Once this
link is established, the rescuer can communicate a patient's clinical
information (such as temperature or blood pressure) and carry out interactive
consulting with hospital personnel, either directly, or through personnel at
the central location in the hospital where the communication was received.
This claim limitation therefore recites managing interactions between
people, and qualifies as a judicial exception under the 2019 Guidance.
Similarly, claim 1, limitation [iii] also recites "provid[ing] managed
clinical dashboard data between one or more clinical dashboard applications
and the server." Appeal Br. 30 (Claims Appendix). The Specification
explains that a "clinical dashboard application" may reside on the clinical
dashboard device (Spec. ,i 80; Fig. 6) which, in tum, may be a computer or
computer-driven large screen monitor located in a hospital emergency room
(Id. ,i,i 79, 143). The Specification also explains that "clinical dashboard
data" may be patient data from a medical device, such as a defibrillator. Id.
,i,i 55, 81. As discussed above, the server may also reside at a central
location in the hospital. Id. ,i 58. This limitation, therefore, recites
communicating patient clinical information between two locations at a
hospital, such as a hospital emergency room where the clinical dashboard
device ( and "clinical dashboard application") is located and the location of a
server within the hospital. This kind of communication traditionally can be
carried out between humans by calling or via a radio link, such as a human
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at the central server location and emergency room personnel at the location
of the clinical dashboard device. This claim limitation therefore recites
managing interactions between people, and qualifies as a judicial exception
under the 2019 Guidance.
Limitation [iii] also recites "apply[ing] a priority rule to arbitrate
between requests ... for clinical data ... , the priority rule giving priority to
real-time vital patient physiological indicators." This limitation merely
describes the general concept of prioritizing one type of medical information
over other types of medical information. Determining priority between
different types of medical information is an evaluation that can be performed
in the human mind, and, therefore, recites a mental process under the 2019
Guidance. See 2019 Guidance, 84 Fed. Reg. at 52.
For these reasons, we determine that claim 1 recites one or more
judicial exceptions to patent eligibility.
C. Analysis under Step 2A, Prong 2, of the 2019 Guidance
Having determined that the claims recite a judicial exception, we next
consider whether the claims recite "additional elements that integrate the
uudicial] exception into a practical application." See 2019 Guidance,
84 Fed. Reg. at 54; MPEP §§ 2106.05(a)-(c), (e)-(h). Here, we conclude
that claim 1 recites sufficient additional elements to integrate the judicial
exception into a practical application.
First, Appellants contend that:
By allowing two-way communication between the remote
medical devices and a clinical dashboard device capable of
retrieving and communicating patient information back to the
remote medical device, Appellant's device/systern/method uses
medical technological tools to enable remote patient care - it is
not simply directed to managing data in the abstract, as the
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Examiner appears to argue .... There is nothing abstract about
using medical devices to communicating vital patient
information within an intemetworked system and prioritizing
requests for critical patient information for the purpose of
facilitating critical and time-sensitive patient care.
Appeal Br. 16-17; see also id. at 17-18 ( contending that the Examiner "over
abstracted the claims" by "neglecting to analyze the function and operation
of remote medical devices (like defibrillators that are important claim
elements" and that the claimed device "improves upon conventional medical
devices by enhancing their medical capacity"); id. at 18 ( contending that the
claims are patent eligible because they are "directed to Appellant's clinical
dashboard device/system/method that gives remote caregivers access to
critical patient information necessary to provide treatment to patients by
receiving vital patient information on a remote medical device").
We do not agree with this contention. Claim l's recitation of
computer equipment (e.g., a processor, a server, an intemetworked system, a
clinical dashboard device, a clinical dashboard client, and a clinical
dashboard data manager module) and "medical technological tools" is
insufficient by itself to transform the claim into a practical application under
Step 2A, prong two of the 2019 Guidance and the relevant precedent. As the
Supreme Court has explained, one "cannot transform a patent-ineligible
abstract idea into a patent-eligible invention" by "the mere recitation of a
generic computer" or by "limiting the use of [the] abstract idea to a
particular technological environment." Alice, 573 U.S. at 223. Similarly,
using computer components that are "purely functional and generic" does
not provide "a meaningful limitation beyond generally linking" the abstract
idea "to a particular technological environment." Id. at 226.
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Here, the computer components in claim 1 include a "processor," a
"server," and a "communications module," which are generic. As to the
"clinical dashboard device" of claim 1, the Specification explains that it can
be "a personal computer, a laptop computer, a tablet," or "a computer driven
large screen monitor," which are also all generic computers or computer
equipment. Spec. ,i 79. As for the recited "clinical dashboard client," the
Specification provides only a functional and generic description of this claim
element, explaining that it is "hardware and software configured to
advantageously manage clinical dashboard data between one or more
clinical dashboard application modules ... and the server." Id. ,i 80. The
same is true of the "clinical dashboard data manager module including an
instance of a clinical dashboard data manager service," which the
Specification describes as generic "hardware and software" that is
configured to perform the function of implementing "a service that provides
managed clinical dashboard data between one or more clinical dashboard
applications in the application modules and the server." Id. ,i 86. Therefore,
claim 1 does no more than simply use "purely functional and generic"
computer tools to implement the judicial exception or limit the use of the
judicial exception "to a particular technological environment." See Alice,
573 U.S. at 223.
Appellant also points to claim l's recitation of a "medical device" that
provides patient data to a server but, here again, the medical device is
described in generic terms. The claim does not recite an improvement in the
functioning of the "medical device" itself, and the "medical device" in the
claim operates in a generic manner to provide data from a patient. Similarly,
the Specification describes a defibrillator as an example of the recited
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"medical device," and describes various known types of defibrillators that
can be used. Spec. ,i,i 6-10, 32-38. Thus, the recited "medical device" that
provides patient data merely limits the use of the judicial exception "to a
particular technological environment," rather than constituting a
technological improvement in itself that would transform the judicial
exception into a practical application. See Alice, 573 U.S. at 223, 226.
Finally, we do not agree with Appellant's contention that claim 1
passes muster under Section 101 because it provides "two-way
communication," "enable[ s] remote patient care," "communicat[ es] vital
patient information," and "prioritiz[ es] requests for critical patient
information for the purpose of facilitating critical and time-sensitive patient
care." Appeal Br. 16-18. As discussed above, these recite communications
that can be carried out between humans or judgments that can be made in the
human mind. They are, therefore, all part of the abstract ideas recited in the
claim and are not sufficient "additional elements that integrate the uudicial]
exception into a practical application."
Appellant next contends that:
Like the resulting website that solved a concrete technological
problem in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
1245 (Fed. Cir. 2014), where the court held the claims to be
statutory subject matter (and not abstract), Appellant's claimed
clinical dashboard device is not simply a routine and
conventional use of the Internet, data, displays, or medical
devices. Rather, the present application solves the concrete
problem of administering critical patient care in a location
remote from a major care facility by enabling remote, two-way
communication between medical devices and a clinical
dashboard, and prioritizing requests for data received from
remote medical devices.
Appeal Br. 17.
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We do not agree that the claims here are analogous to those in DDR.
In DDR, the claimed invention provided a solution that "is 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.
Specifically, the claims in DDR "specif[ied] how interactions with the
Internet are manipulated to yield a desired result - a result that overrides the
routine and conventional sequence of events ordinarily triggered by the click
of a hyperlink." Id. at 1258. Here, claim 1 does not solve a concrete
technological problem using a solution that is necessarily rooted in computer
technology or in another technical field. Rather, as discussed above, claim 1
uses functional and generic computer and medical device elements to
implement a method of communicating medical information between a
rescuer and hospital personnel and prioritizing certain clinical information
over other clinical information. Claim 1 does not "improve the functioning
of the computer itself," rather than simply limiting the use of the judicial
exception "to a particular technological environment." See Alice, 573 U.S.
223,225.
Finally, Appellant contends that:
Like the claims found statutory (and not abstract) in Enfzsh,
which were drawn to improving database structures to make
them self-referential, Appellant's claimed device improves
upon conventional medical devices by enhancing their
operational capacity. Here, the claimed enhancements to
medical devices allow for connection to an intemetworked
clinical data system and allowing for two-way communication
of vital patient information.
Appeal Br. 17.
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In Enfzsh, the recited "self-referential table" was "a specific type of
data structure designed to improve the way a computer stores and retrieves
data in memory" which was "a specific implementation of a solution to a
problem in the software arts." Enfzsh, LLC v. Microsoft Corp., 822 F.3d
1327, 1339 (Fed. Cir. 2016). Thus the claims were "directed to an
improvement in the functioning of a computer." Id. at 1338. Here, by
contrast, claim 1 is directed to an improvement in communicating patient
information between a rescuer and hospital personnel, and the prioritization
of certain medical information, rather than an improvement in the
functioning of a computer itself. Claim 1 does not describe new data
structures or other improvements in computer technology but rather, as
discussed above, recites generic computer technology such as personal
computers and servers, as well as software functions that are described in the
Specification as implemented using generic hardware and software.
D. Analysis under Step 2B
Under Step 2B, we determine whether claim 1 includes additional
elements individually or in combination that provide an inventive concept
and, therefore, amount to significantly more than the exception itself. Here,
Appellant has not established that claim 1 includes any such "inventive
concept," or that claim 1 adds limitations beyond the judicial exception that
are not "well-understood, routine, or conventional" in the field. See MPEP
§ 2106.0S(d).
First, Appellant contends that "[t]here is nothing generic,
conventional, or routine about using medical devices specifically designed to
communicate, arbitrate between, and receive vital patient information within
an intemetworked system for the purpose of facilitating critical and time-
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sensitive patient care." Appeal Br. 20. However, as discussed above, the
functions of communicating patient information between humans and
prioritizing certain patient information over other patient information are
abstract ideas under the 2019 Guidance and the relevant precedent. Claim 1
simply implements these abstract ideas using generic computer equipment
(such as a "processor," a "server," a "communications module," and a
"medical device"), and functional components implemented using generic
computer hardware and software (such as a "clinical dashboard device," a
clinical dashboard module" and a clinical dashboard data manager module").
Spec. ,i,i 79, 80, and 86. Thus, the claim elements do not go beyond the
judicial exceptions to provide an "inventive concept" and involve well-
understood, routine, or conventional computer and medical hardware.
Second, Appellant contends that the Examiner erred in not
"considering how the particular arrangement of elements makes a
technological improvement over prior ways (if any) of prioritizing requests
for patient vital indicators received from remote medical devices." Appeal
Br. 21. Here, however, the Examiner analyzed the different computer and
medical device components and functions in claim 1 and concluded that they
involve "generic computer components that serve to merely link the abstract
idea to a particular technological environment (i.e. processors, networks,
displays, memories, defibrillators, communication devices, dashboard
devices, etc.) performing routine and conventional activities that are well-
understood in the healthcare industry (i.e. receiving data, applying a rule to
receiving data, providing data, etc.)." Non-Final Act. 5. The Examiner
further determined that these elements "merely provide conventional
computer implementation" and that "[t]here is no indication that the
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combination of elements improves the functioning of a computer or
improves any other technology," and "[l]ooking at the limitations as an
ordered combination adds nothing that is not already present when looking
at the elements taken individually." Id. Appellant has not demonstrated
error in this analysis, or provided a sufficient basis to support a conclusion
that the computer, hardware, and software elements in claim 1 are something
more than well-understood, routine, and conventional components that are
used as intended. Nor has Appellant pointed to an "inventive concept" other
than simply alleging in general terms that the invention improves
communication and prioritization of known types of patient information.
Therefore, we do not agree that there was error in the Examiner's conclusion
under Step 2B that the claims are not patent-eligible.
Consequently, we agree with the Examiner that claim 1 is directed to
patent-ineligible subject matter. We likewise sustain this rejection, as well
as the rejection of claims 2-32, which are not argued separately.
II. THE SECTION 103 REJECTION
In the Non-Final Office Action, the Examiner rejected claim 1 as
unpatentable over Linthicum (US 2010/0131482 A 1; published May 27,
2010) in view of Robertson (US 2011/0144451 Al; published Jun. 16, 2011)
and Neuman (US 2003/0167294 Al; published Sep. 4, 2003). The
Examiner determined that Linthicum discloses, inter alia, a clinical
dashboard device that receives clinical dashboard data (including data on
patients' vital signs) from a server and exchanges data with an external
system, and a clinical dashboard data manager module that provides
managed clinical dashboard data between one or more clinical dashboard
applications and the server. Non-Final Act. 6-7. The Examiner relies on
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Robertson to teach, inter alia, support for interactive consulting, and relies
on Neuman to teach prioritizing requests. Id. at 7-8. Appellant contends
that the cited art does not teach the combination set forth in claim 1. Appeal
Br. 21-27; Reply Br. 2-4. We do not agree that the Examiner's rejection
was m error.
In its Appeal Brief, Appellant first discusses the Linthicum,
Robertson, and Neuman references, and explains why each reference
individually is missing one or more features of claim 1, which the Examiner
relies on another reference to teach. Appeal Br. 21-23. For example,
Appellant asserts that Linthicum does not teach prioritizing requests (which
the Examiner asserts is taught by Neuman), that Robertson does not teach
prioritizing requests or communication and display of patient data between
intemetworked medical devices ( which the Examiner asserts is taught by
Linthicum and Neuman), and that Neuman is not directed to the health or
medical fields (which the Examiner asserts is taught by Linthicum and
Robertson). Id. However, Appellant cannot show nonobviousness by
attacking references individually when the rejection is based on a
combination of references, as is the case here. See In re Keller, 642 F.2d
413, 425 (CCPA 1981). Appellant's assertions about the deficiencies of the
individual references, therefore, fail to show error in the Examiner's
determination of obviousness.
Next, Appellant contends that the Examiner erred in relying on
Neuman to teach claim l's requirement that the clinical dashboard device is
"configured to apply a priority rule to arbitrate between requests from
clinical dashboard applications for clinical data from the server, the priority
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rule giving priority to real-time vital patient physiological indicators."
Appeal Br. 25. Appellant raises two contentions in this regard.
First, Appellant contends that Neuman does not teach prioritizing
requests for data "in a medical setting that involve[ s] vital patient
physiological indicators" and, therefore, "nothing in Neuman would teach
one skilled in the art to create or apply the recited priority rule in the
telemedicine setting to assign priority based on a specific type of clinical
data." Id. at 26. Second, Appellant contends that Neuman teaches
"aggregating client requests to devise an aggregate service deadline," and
therefore "teaches away from the claimed recitation that requires the
system/device/method to prioritize certain types of data requests over
others." Appeal Br. 26; Ans. 2.
We do not agree with Appellant's contentions. Neuman teaches "a
means to prioritize clients based on their real-time needs." Neuman ,-J 37.
Then, "if a request is received from a higher priority client while a lower
priority client is being serviced by the common resource, the arbiter 110
interrupts the processing of the lower priority client's request and provides
access to the shared resource to the higher priority client." Id. ,-i 43. And,
"[ e Jach client is serviced immediately if it has the highest priority request."
Id. ,-i 45. Thus, Neuman teaches applying a priority rule to arbitrate between
requests for data from a shared resources, and giving priority to certain
requests over others.
The Examiner combines the teachings of Neuman with those of
Linthicum and Robertson, so the teachings of those references also must be
considered. Linthicum teaches a user interface for a medical dashboard
system which displays a variety of patient medical information (including
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real-time clinical data) using, for example, widgets that can be displayed in a
portion of the display area. Linthicum ,i,i 64-65, 76-77, Figs. 2-4. This
information can be retrieved by the user interface or widget from one or
more data sources. Id. ,i,i 37, 107-110, Figs. 1-6. These widgets can
include a widget that displays real-time patient vital signs, such as
temperature and blood pressure. Id. ,i,i 65, 150, Figs. 2-4. One of ordinary
skill would have understood based on these disclosures that, to obtain the
data to be displayed in the various widgets and on the various devices with
user interfaces, there would be a need to prioritize requests for certain types
of data over others, and that prioritizing data on patient vital signs would be
a logical type of data to prioritize. One of ordinary skill also would have
looked to systems, such as that in Neuman, for implementing a priority rule
to arbitrate between requests for data from a shared resource, such as the
data sources in Linthicum. Therefore, we find that a sufficient basis exists
for the Examiner's rejection based on the combined teachings of Linthicum,
Robertson, and Neuman, and we do not agree with Appellant's contentions
that the recited priority rule is not taught by the cited references.
Finally, Appellant contends that "the Examiner fails to address the
interactive consulting claim element" of claim 1, asserting that:
[T]he Examiner relied on Robertson's teaching of a
telemedicine portal that provides access to patient information
like medical records and diagnostic data based on data sensed
by sensors worn by the patients. Robertson facilitates
telemedicine in which doctors can remotely receive patient
data, one patient at a time. The Robertson system has no
ability, due to the patient privacy issues, to prioritize data
between multiple devices which inherently are with rescuers
treating different patients. The sensors worn by patients in the
Robertson system cannot be networked medical devices
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because of patient data privacy issues, nor are their respective
patient vital signs data prioritized in any way.
Reply Br. 4.
We do not agree with Appellant's contention. The Examiner relies on
Robertson to teach the "interactive consulting" element of claim 1,
specifically that the device is configured to "provide interactive consulting
between a user of the clinical dashboard device and a user of the medical
device." Non-Final Act. 7-8 (citing Robertson ,-J,-J 13, 19-23, and 27). We
agree that Robertson teaches this claim element. For example, Robertson
teaches that the device "can provide multimedia interaction (synchronous or
asynchronous) (such as voice, video, chat, etc.) to facilitate communication
between the user and the medical professional." Robertson ,-J 27. See also
Robertson ,-J 16 ( explaining that the device "provides a virtual session for
remote examination between a user ( e.g., patient) and a medical
professional"); id. ,-i 17 ( explaining that a medical professional may
communicate with a patient to indicate where a sensor should be placed).
The Examiner does not rely on Robertson to teach networking of medical
devices or prioritizing data between multiple devices, relying instead on
Linthicum and/or Neuman for these limitations. See Non-Final Act. 6-9.
Appellant's contention that Robertson does not teach what the Examiner
relies on the other references to teach fails to show error in the Examiner's
rejection.
Accordingly, we sustain the Examiner's rejection of claim 1 under
Section 103. We also sustain the Section 103 rejection of claims 2-32,
which are not separately argued.
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CONCLUSIONS
We affirm the Examiner's rejections of claims 1-32 under 35 U.S.C.
§ 101 as directed to non-statutory subject matter and under 35 U.S.C. § 103
as obvious over the teachings of the applied references.
In summary:
1-32 § 101 1-32
1-4,6-10,24,28- § 103 Linthicum, 1-4, 6-10, 24,
29 Robertson, Neuman 28-29
5,25-27,30-32 § 103 Linthicum, 5 25-27 30-
' ' Robertson, Neuman, 32
Mand am
11-16, 18-23 § 103 Linthicum, 11-16, 18-23
Robertson, Neuman,
Burnes
17 § 103 Linthicum, 17
Robertson, Neuman,
Bums, Mand am
Overall Outcome 1-32
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ).
AFFIRMED
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