Verizon Patent and Licensing Inc.

Patent Trials and Appeals Board

Nov 12, 2020

14853418 - (D) (P.T.A.B. Nov. 12, 2020)

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.
14/853,418 09/14/2015 Jeffrey M. GETCHIUS 20120789P1 4948
170055 7590 11/12/2020
VERIZON - HH
VERIZON PATENTING GROUP
1300 I STREET NW
SUITE 500 EAST
WASHINGTON, DC 20005
EXAMINER
TOMASZEWSKI, MICHAEL
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
11/12/2020 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):
VZPatent170055@verizon.com
ptomail@harrityllp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEFFREY M. GETCHIUS
____________

Appeal 2020-001331
Application 14/853,418
Technology Center 3600
____________

Before ERIC S. FRAHM, JOHNNY A. KUMAR, and
CATHERINE SHIANG, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–4 and 6–21, which are all the claims pending and
rejected in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies Verizon Communications Inc. as the real party in
interest. Appeal Br. 3.

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Application 14/853,418

2

STATEMENT OF THE CASE
Introduction
The present invention relates to “detect[ing] health fraud.” Spec. ¶ 22.
In one example,
the systems and/or methods may receive healthcare information
(e.g., associated with providers, beneficiaries, etc.), and may
calculate a geographic density of fraud based on the healthcare
information. Based on the healthcare information, the systems
and/or methods may determine anomalous distributions of
fraud, and may derive empirical estimates of
procedure/treatment durations. The systems and/or methods
may utilize classifiers, language models, co-morbidity analysis,
and/or link analysis to determine inconsistencies in the
healthcare information. The systems and/or methods may
calculate parameters for a healthcare fraud monitoring system
based on the geographic density of fraud, the anomalous
distributions of fraud, the empirical estimates, and/or the
inconsistencies, and may provide the calculated parameters to
the healthcare fraud monitoring system.
Spec. ¶ 22. Claim 1 is exemplary:
1. A method relating to machine learning, the method
comprising:
receiving, by a first device, information, including a
claim, from a plurality of second devices;
processing, by the first device, the received information
to create processed information;
determining, by the first device, analysis techniques for a
plurality of triggering parameters associated with prior
processed claim information based on a machine learning
process,
determining, by the first device, one or more scores using
the analysis techniques for the plurality of triggering
parameters,
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the one or more scores based on the processed
information and being determined based on utilizing a
particular analysis technique;
comparing, by the first device, the one or more scores
with threshold levels associated with particular parameters to
determine a response parameter;
prioritizing, by the first device, the claim based on the
response parameter to create an alert category;
generating, by the first device, a fraud map, based on the
processed information and the prior processed claim
information;
receiving, by the first device, a dispensation of the claim
based on fraud information including the alert category, the
response parameter, and the fraud map,
the dispensation of the claim including denying the claim
or paying the claim; and
generating, by the first device, updated analysis
techniques for the plurality of triggering parameters based on
the machine learning process using the dispensation and the
fraud information.

Rejection2

Claims
Rejected
35 U.S.C.
§
Basis
1–4, 6–21 101 Subject Matter Eligibility

ANALYSIS
35 U.S.C. § 101

2 Throughout this opinion, we refer to the (1) Final Office Action dated
April 17, 2019 (“Final Act.”); (2) Appeal Brief dated July 12, 2019 (“Appeal
Br.”); (3) Examiner’s Answer dated October 24, 2019 (“Ans.”); and (4)
Reply Brief dated December 9, 2019 (“Reply Br.”).
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We disagree with Appellant’s arguments. To the extent consistent
with our analysis below, we adopt the Examiner’s findings and conclusions
in (i) the action from which this appeal is taken and (ii) the Answer.
Section 101 of the Patent Act provides “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and requirements of this
title.” 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. Pty.
Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation marks
and citation omitted).
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.”).
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 (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.
(15 How.) 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 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 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. (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
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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 United States Patent and Trademark Office published revised
guidance on the application of § 101. USPTO, 2019 REVISED PATENT
SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Guidance”).3 Under the 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) (Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into
a practical application (see Manual of Patent Examining
Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h)) (9th ed. rev.
08.2017 2018) (Step 2A, Prong 2).
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. (Step 2B.)
See Guidance, 84 Fed. Reg. at 54–56.

3 The Guidance was updated in October 2019.
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Step 2A, Prong 1 of the Guidance
Turning to Step 2A, Prong 1 of the Guidance, claim 1 (with emphases
added) recites:4
1. A method relating to machine learning, the method comprising:

receiving, by a first device, information, including a
claim, from a plurality of second devices;
processing, by the first device, the received information
to create processed information;
determining, by the first device, analysis techniques for a
plurality of triggering parameters associated with prior
processed claim information based on a machine learning
process,
determining, by the first device, one or more scores using
the analysis techniques for the plurality of triggering
parameters, the one or more scores based on the processed
information and being determined based on utilizing a
particular analysis technique;
comparing, by the first device, the one or more scores
with threshold levels associated with particular parameters to
determine a response parameter;
prioritizing, by the first device, the claim based on the
response parameter to create an alert category;
generating, by the first device, a fraud map, based on the
processed information and the prior processed claim
information;
receiving, by the first device, a dispensation of the claim
based on fraud information including the alert category, the
response parameter, and the fraud map, the dispensation of the
claim including denying the claim or paying the claim; and

4 We select claim 1 as the representative claim, and group the remaining
claims accordingly under 37 C.F.R. 41.37(c)(1)(iv) (“[T]he failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of each grouped claim separately.”).
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generating, by the first device, updated analysis
techniques for the plurality of triggering parameters based on
the machine learning process using the dispensation and the
fraud information.

Because all of the italicized functions can be performed by a human
using a pen and paper, they are like the mental processes in CyberSource
and Synopsys. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1372–73 (Fed. Cir. 2011) (“All of claim 3’s method steps can be
performed in the human mind, or by a human using a pen and paper. . . .
Such a method that can be performed by human thought alone is merely an
abstract idea and is not patent-eligible under § 101.”); Synopsys, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1146 (Fed. Cir. 2016) (“[W]e
continue to ‘treat[ ] analyzing information by steps people go through in
their minds, or by mathematical algorithms, without more, as essentially
mental processes within the abstract-idea category.’” (citation omitted)).
For example, a person can “receiving . . . information, including a
claim, from a plurality of . . .” by receiving the information on paper. See
Spec. ¶ 26 (describing receiving data).5 Further, a person can use a pen and
paper to perform the following steps
processing . . . the received information to create processed
information;
determining . . . analysis techniques for a plurality of triggering
parameters associated with prior processed claim information
based on a . . . process,
determining . . . one or more scores using the analysis
techniques for the plurality of triggering parameters, the one or

5 We cite the Specification to show our analysis is consistent with the
relevant exemplary embodiments of the Specification, but do not import
such exemplary embodiments into the limitations.
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more scores based on the processed information and being
determined based on utilizing a particular analysis technique;
comparing . . . the one or more scores with threshold levels
associated with particular parameters to determine a response
parameter;
of claim 1. In particular, a person may use “sets of rules” as analysis
techniques (Spec. ¶ 27), calculate scores using a pen and paper, and compare
the scores with threshold levels mentally or by using a pen and paper. See
Spec. ¶ 27 (describing using data analysis to perform the above determining
and comparing steps).
Similarly, a person can “prioritizing . . . the claim based on the
response parameter to create an alert category” by prioritizing the claim
mentally and using a pen and paper to create an alert category. See Spec.
¶ 27 (describing “accept” or “reject” alert categories). A persona can also
“generating . . . a fraud map, based on the processed information and the
prior processed claim information” by drawing a fraud map on paper. See
Spec. ¶ 59 (describing fraud maps in broad terms). In addition, a person can
“receiving . . . a dispensation of the claim based on fraud information
including the alert category, the response parameter, and the fraud map, the
dispensation of the claim including denying the claim or paying the claim”
on paper, as the received information constitutes data. Finally, a person can
“generating . . . updated analysis techniques for the plurality of triggering
parameters based on the . . . process using the dispensation and the fraud
information” by using a pen and paper to write down updated analysis
techniques, such as updated “sets of rules.” See Spec. ¶ 27 (describing “sets
of rules” as analysis techniques).
Appellant argues:
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claim 1 recites “determining, by the first device, a plurality of
triggering parameters associated with the processed
information, each triggering parameter, of the plurality of
triggering parameters, being determined based on utilizing a
particular analysis technique.” As discussed in the specification
in paragraphs [0073]-[0089] and Figure 7, the plurality of
triggering parameters are based on the particular analysis
techniques of language models/co-morbidity, linear
programing, statistical analysis, link analysis, classifies and
geography. As such, the determination of scores using the
analysis techniques for the plurality of triggering parameters
cannot be performed by a mental process.

Appeal Br. 10.
Appellant’s argument is not commensurate with the scope of claim 1,
as claim 1—listed by Appellant—does not recite “determining, by the first
device, a plurality of triggering parameters associated with the processed
information, each triggering parameter, of the plurality of triggering
parameters, being determined based on utilizing a particular analysis
technique.” See Claim 1. To the extent Appellant is importing limitations
from the Specification into claim 1, we decline to do so because it is well
established that during examination, claims are given their broadest
reasonable interpretation consistent with the specification and should be read
in light of the specification as it would be interpreted by one of ordinary skill
in the art, but without importing limitations from the specification. See In re
Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations
omitted); SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875
(Fed. Cir. 2004).
Appellant also lists claim limitations of claim 1, and then concludes
“[a]s such, claim 1 is reciting features that together are part of a complex
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analysis that cannot practically be performed in a person’s mind.” Appeal
Br. 11. Appellant’s conclusory argument is unpersuasive, as Appellant does
not provide sufficient objective evidence to support the assertion. See In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“attorney argument [is] not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness”); Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977)
(“Argument of counsel cannot take the place of evidence lacking in the
record.”).
As a result, we conclude claim 1 recites mental processes, and thus an
abstract idea. See Guidance, Step 2A, Prong 1 (Groupings of Abstract
Ideas).

Step 2A, Prong 2 of the Guidance
Turning to Step 2A, Prong 2 of the Guidance, contrary to Appellant’s
assertions (Appeal Br. 8–17; Reply Br. 2–6), claim 1 does not recite
additional elements that integrate the judicial exception into a practical
application. In particular, Appellant’s arguments that “the features of the
claim solve the problem by providing an inventive technique for processing
healthcare claims” and “[t]he claims provide a specific improvement to the
technological field of computer-based healthcare claims payment” (Appeal
Br. 12–13; see also Reply Br. 3–5) are unpersuasive because “a claim for a
new abstract idea is still an abstract idea.” Synopsys, 839 F.3d at 1151.
“[U]nder the Mayo/Alice framework, a claim directed to a newly discovered
law of nature (or natural phenomenon or abstract idea) cannot rely on the
novelty of that discovery for the inventive concept necessary for patent
eligibility . . . .” Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376
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(Fed. Cir. 2016) (citations omitted).
Appellant also argues the claimed invention “improv[es]the accuracy
and efficiency of prior healthcare claim systems.” Appeal Br. 14; see also
Appeal Br. 13. However, our reviewing court has declared:
While the claimed system and method certainly purport to
accelerate the process of analyzing audit log data, the speed
increase comes from the capabilities of a general-purpose
computer, rather than the patented method itself. See Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687
F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required
calculations could be performed more efficiently via a computer
does not materially alter the patent eligibility of the claimed
subject matter.”).
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir.
2016) (emphases added).
Applying this reasoning to the rejected claims, we similarly find any
purported “accuracy and efficiency” (Appeal Br. 14) come from the
capabilities of general-purpose computers (the recited “first device”), rather
than the claimed functions. Similar to the claims of FairWarning, claim 1 is
“not directed to an improvement in the way computers operate” and “the
focus of the claims is not on . . . an improvement in computers as tools, but
on certain independently abstract ideas that use computers as tools.”
FairWarning, 839 F.3d at 1095. Our analysis is consistent with the
Specification, which describes the recited “device” as known computing
devices. See, e.g., Spec. ¶ 32 (“prescription provider device 220 may
correspond to a communication device ( e.g., a mobile phone, a smartphone,
a personal digital assistant (PDA), or a wireline telephone), a computer
device ( e.g., a laptop computer, a tablet computer, or a personal computer),
a set top box, or another type of communication or computation device”);
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Spec. ¶ 42 (“Fig. 3 is a diagram of example components of a device 300.
Device 300 may correspond to prescription provider device 220 . . . device
300 may include a bus 310, a processing unit 320, a main memory 330, a
read only memory (ROM) 340, a storage device 350, an input device 360, an
output device 370, and a communication interface 380”).
Further, Appellant’s assertion regarding pre-emption (Appeal Br. 12)
is unpersuasive, because
[w]hile preemption may signal patent ineligible subject matter,
the absence of complete preemption does not demonstrate
patent eligibility . . . . Where a patent’s claims are deemed only
to disclose patent ineligible subject matter under the Mayo
framework, as they are in this case, preemption concerns are
fully addressed and made moot.

Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir.
2015); see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–
63 (Fed. Cir. 2015) (“that the claims do not preempt all price optimization or
may be limited to price optimization in the e-commerce setting do not make
them any less abstract”).
In addition, Appellant cites Example 42 (Appeal Br. 13–14; Reply Br.
5), but does not persuasively explain why that case is similar to the present
case. According to the USPTO:
The claim recites the combination of additional elements of: a)
storing information in a standardized format; b) providing
remote access to users over a network in real time through a
graphical user interface, wherein the one of the users provides
the updated information in a non-standardized format
dependent on the hardware and software platform used by the
one of the users; c) converting, by a content server, the non-
standardized updated information into the standardized format;
d) storing the standardized updated information about the
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patient’s condition in the collection of medical records in the
standardized format; e) automatically generating a message
containing the updated information about the patient’s
condition by the content server whenever updated information
has been stored; and f) transmitting the message to all of the
users over the computer network in real time.
USPTO, Example 42.

The combination of additional elements . . . integrate the
abstract idea into a practical application. Specifically, the
combination of additional elements recites a specific
improvement over prior art systems by allowing remote users to
share information in real time in a standardized format
regardless of the format in which the information was input by
the user.

The claim as a whole integrates the certain method of
organizing human activity into a practical application.
Id. (emphasis added).
Unlike Example 42, claim 1 does not “allow[] remote users to share
information in real time in a standardized format regardless of the format in
which the information was input by the user” or provide similar technology
improvements. Id. Therefore, Example 42 is inapplicable here.
As a result, we conclude claim 1 does not recite additional elements
that integrate the judicial exception into a practical application. See
Guidance, Step 2A, Prong 2.

Step 2B of the Guidance
Turning to Step 2B of the Guidance (Alice step two), Appellant does
not persuasively argue any specific limitation (when viewed individually or
as an ordered combination) was not well-understood, routine, or
conventional in the field. Nor does Appellant persuasively argue the
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Examiner erred in that aspect. In particular, Appellant’s argument about the
absence of a prior art rejection (Appeal Br. 17) is unpersuasive, because a
prior art rejection is determined under 35 U.S.C. § 102 and § 103, which are
different statutory requirements. As the Supreme Court emphasizes: “[t]he
‘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 (emphasis added). Our reviewing court further guides
that “[e]ligibility and novelty are separate inquiries.” Two-Way Media Ltd.
v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017).
Further Appellant’s argument about Berkheimer v. HP Inc., 881 F.3d
1360, 1367 (Fed. Cir. 2018) (Reply Br. 16–17; see also Reply Br. 6) is
unpersuasive. According to the Memorandum of Changes in Examination
Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter
Eligibility Decision (Berkheimer v. HP, Inc.) (“Berkheimer Memorandum”),
whether “an additional element (or combination of elements) is . . . well-
understood, routine or conventional” is a factual inquiry. Berkheimer
Memorandum at 3. The Examiner responds to Appellant’s Berkheimer
arguments by citing specific paragraphs of the Specification to show the
additional elements (when viewed individually or as an ordered
combination) were well-understood, routine, or conventional in the field.
See Ans. 5–6. Appellant does not critique that factual finding and, therefore,
fails to show Examiner error.
As a result, Appellant has not persuaded us the Examiner erred with
respect to the Guidance’s Step 2B analysis. See Guidance, Step 2B.
Because Appellant has not persuaded us the Examiner erred, we
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sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 101.
We also sustain the Examiner’s rejection of claims 2–4 and 6–21, as
Appellant does not advance separate substantive arguments about those
claims. See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1–4 and 6–21
under 35 U.S.C. § 101.

In summary:

Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 6–21 101 Subject Matter
Eligibility
1–4, 6–21

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). See 37
C.F.R. § 41.50(f).

AFFIRMED