Becton, Dickinson and Company

Patent Trials and Appeals Board

Jan 11, 2021

2020005479 (P.T.A.B. Jan. 11, 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.
14/098,695 12/06/2013 Tracy L. Gustafson BECTON 3.0-082
DIV (0711)
1092
147462 7590 01/11/2021
Botos Churchill IP Law LLP
430 Mountain Avenue
Suite 401
New Providence, NJ 07974
EXAMINER
LAM, ELIZA ANNE
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
01/11/2021 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):
ip.docket@bd.com
pto@bciplaw.com
rbotos@bciplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TRACY L. GUSTAFSON
Appeal 2020-005479
Application 14/098,695
Technology Center 3600
Before ALLEN R. MacDONALD, JASON V. MORGAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 13–31, which are all of the claims pending in the
application. 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(a). Appellant identifies Becton, Dickinson and Company as
the real party in interest. Appeal Br. 2.
Appeal 2020-005479
Application 14/098,695

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TECHNOLOGY
The application relates to a “rapid syndrome analysis apparatus and
method.” Spec. Title.
ILLUSTRATIVE CLAIM
Claim 13 is illustrative and reproduced below:
13. A method for providing rapid syndrome analysis comprising:
receiving, using a set of instructions stored on a computer
readable medium of a computer, syndromatic surveillance count
data for a plurality of past time blocks within a plurality of
moving baseline intervals from a plurality of computer devices
over a network;
calculating, using the set of instructions, for each moving
baseline interval, a trimmed moving weighted means and sigma
of the received syndromatic surveillance count data of the past
time blocks within that moving baseline interval;
receiving, using the set of instructions, syndromatic
surveillance count data for a current time block from a plurality
of computer devices over the network;
calculating, using the set of instructions, a plurality of
cumulative sums (CUSUMs) using (a) the received syndromatic
surveillance count data for the plurality of past time blocks,
(b) the calculated trimmed moving weighted means and sigmas,
and (c) the received syndromatic surveillance count data for the
current time block, wherein each of the CUSUMs are calculated
using at least one of a different moving baseline interval or a
different predetermined threshold value within a first set of
threshold values stored on the computer readable medium;
comparing, using the set of instructions, the calculated
CUSUMs with a plurality of predetermined threshold values
within a second set of threshold values stored on the computer
readable medium; and
when the comparison indicates that a magnitude of one or
more of the calculated CUSUMs exceeds a magnitude of one or
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Application 14/098,695

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more of the predetermined threshold values within the second set
of threshold values:
generating, using the set of instructions, one or more
flag signals; and
sending, using the set of instructions, an indication
of a seriousness or an unusualness of a disease outbreak to
a computer device over the network based on the one or
more generated flag signals.
REJECTION
Claims 13–31 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more. Final Act. 2.
ANALYSIS
The Supreme Court has set forth a two part test for § 101 to determine
whether the subject matter of a claim is patentable: (1) “whether the claims
at issue are directed to” “laws of nature, natural phenomena, and abstract
ideas” and (2) “whether the additional elements ‘transform the nature of the
claim’ into a patent-eligible application.” Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 217 (2014) (quoting Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 79, 78 (2012)). “Eligibility under 35 U.S.C. § 101
is a question of law, based on underlying facts.” SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1166 (Fed. Cir. 2018).
In 2019, the U.S. Patent & Trademark Office (“USPTO”) expanded
on the Supreme Court’s test with revised guidance. USPTO, 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Guidance”); USPTO, October 2019 Update: Subject Matter Eligibility,
available at https://www.uspto.gov/sites/default/files/documents/
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peg_oct_2019_update.pdf (“Oct. Update”). Under that Guidance, we use the
following steps to determine whether a claim recites the following items:
USPTO
Step Does the claim recite ___? MPEP §
1 A process, machine, manufacture, or composition of matter 2106.03
2A,
Prong 1
A judicial exception, such as a law of nature or any
of the following groupings of abstract ideas:
1) Mathematical concepts, such as
mathematical formulas;
2) Certain methods of organizing human
activity, such as a fundamental economic
practice; or
3) Mental processes, such as an observation or
evaluation performed in the human mind.
2106.04
2A,
Prong 2
Any additional limitations that integrate the judicial
exception into a practical application
2106.05(a)–
(c), (e)–(h)
2B
Any additional limitations beyond the judicial
exception that, alone or in combination, were not
“well-understood, routine, conventional”
2106.05(d)
See Guidance, 84 Fed. Reg. at 52, 55, 56.
In this case, there is no dispute under USPTO Step 1, so we begin our
analysis under Prong 1 of USPTO Step 2A. Claim 13 recites, in part, the
following limitations:
calculating, . . . for each moving baseline interval, a
trimmed moving weighted means and sigma of the received
syndromatic surveillance count data of the past time blocks
within that moving baseline interval;
. . .
calculating . . . a plurality of cumulative sums (CUSUMs)
using (a) the received syndromatic surveillance count data for the
plurality of past time blocks, (b) the calculated trimmed moving
weighted means and sigmas, and (c) the received syndromatic
surveillance count data for the current time block, wherein each
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of the CUSUMs are calculated using at least one of a different
moving baseline interval or a different predetermined threshold
value within a first set of threshold values stored on the computer
readable medium;
comparing . . . the calculated CUSUMs with a plurality of
predetermined threshold values within a second set of threshold
values stored on the computer readable medium; and
when the comparison indicates that a magnitude of one or
more of the calculated CUSUMs exceeds a magnitude of one or
more of the predetermined threshold values within the second set
of threshold values:
generating . . . one or more flag signals . . . .
Each of these “calculating”; “comparing”; and “generating” steps can be
performed mentally or with pen and paper. As both Appellant and the
Examiner note, the claims and the rest of the Specification do not put any
minimum on the data size, see Reply Br. 4–5, so the claims permit a small
enough sample size that the calculations can reasonably be completed in the
human mind. See Ans. 4. Appellant has not identified any reason why these
steps could not be performed in the human mind. Thus, claim 13 recites
mental processes, which are abstract ideas.
For Prong 2 of USPTO Step 2A, the additional limitations are (1) the
two “receiving” steps; (2) the “sending” step; and (3) performing all the
steps “using a set of instructions stored on a computer readable medium of a
computer.” However, “receiving . . . syndromatic surveillance count data”
for past or current time blocks “from a plurality of computer devices over a
network” is merely insignificant pre-solution activity of data gathering.
Ans. 4. Similarly, “sending . . . an indication of a seriousness or an
unusualness of a disease outbreak to a computer device over the network
based on the one or more generated flag signals” is merely insignificant
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post-solution activity equivalent to displaying the result. Id. The Federal
Circuit has held that “the ‘realm of abstract ideas’ includes ‘collecting
information, including when limited to particular content’”; “analyzing
information by steps people go through in their minds, or by mathematical
algorithms, without more, [which are] essentially mental processes”;
“merely presenting the results of abstract processes of collecting and
analyzing information, without more (such as identifying a particular tool for
presentation) . . . as an ancillary part of such collection and analysis”; and “a
combination of these abstract-idea categories.” FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
Performing the steps using instructions on a computer readable medium
likewise fails to render the claims eligible because “[a]n abstract idea on ‘an
Internet computer network’ or on a generic computer is still an abstract
idea.” BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d
1341, 1348 (Fed. Cir. 2016).
Appellant argues that “the present claims enable a computer to
provide rapid syndrome analysis that ‘can be much more accurate and
sensitive than prior art methods.’” Reply Br. 4 (quoting Spec. ¶ 57).
However, “a claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016). “Groundbreaking, innovative, or even brilliant discovery does not by
itself satisfy the § 101 inquiry.” Ass’n for Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 591 (2013). And here, we agree with the
Examiner that “[w]hile Appellant[’]s algorithm may be more accurate than
the prior art, it is an improvement to the abstract idea and not an
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improvement to a functioning of a computer or other technology.” Ans. 4–5.
“It has been clear since Alice that a claimed invention’s use of the ineligible
concept to which it is directed cannot supply the inventive concept that
renders the invention ‘significantly more’ than that ineligible concept.” BSG
Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
Appellant attempts to analogize the present claims to the USPTO’s
Example 42. Appeal Br. 11–14. However, Example 42 explains that its
claim 1—a method for transmission of notifications when medical records
are updated—integrates the method into a practical application as follows:
“Specifically, the additional elements recite 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.” Subject Matter Eligibility Examples: Abstract Ideas,
18–19 (Jan. 7, 2019), available at https://www.uspto.gov/sites/default/files/
documents/101_examples_37to42_20190107.pdf. Technical problems and
solutions comparable to those of Example 42 (e.g., “remote users” sharing
information in non-standardized formats in real time and the conversion of
those disparate formats into one “standardized format”) are wholly lacking
in the present claims. Here, both the problem (inability to quickly recognize
an outbreak) and the solution (calculations using multiple CUSUMs and
comparing to a threshold) exist even in the absence of computers or other
technology. Appellant’s reliance on the technical problem and solution in
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed.
Cir. 2016), is inapposite for similar reasons. Reply Br. 5–7.
Thus, claim 13 fails to integrate the abstract idea into a practical
application under Prong 2 of USPTO Step 2A.
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For USPTO Step 2B, we also agree with the Examiner that the
additional limitations, whether alone or in combination, recite only well-
understood, routine, and conventional components. Ans. 4. The
Specification itself states that “[c]omputer 12 may be any computer now
known or hereafter developed” and “includes software 20, as known, on
computer readable medium 22 . . . such as a disc, cd, dvd or the like.” Spec.
¶ 25. The courts likewise have held that “receiving transmitted data over a
network and displaying it to a user merely implicates purely conventional
activities that are the ‘most basic functions of a computer.’” Intellectual
Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017)
(quoting Alice, 573 U.S. at 225).
Appellant further argues that each of the dependent claims recite
additional technological improvements. Appeal Br. 16–17. However, we
agree with the Examiner that none of the additional limitations are
“technological.” Ans. 5. Instead, they merely add minor details to either the
calculations that can still be done mentally (e.g., setting the intervals to a
certain number of days or excluding certain past values) or the insignificant
extra-solution activities that are not technical (e.g., making the response a
“color”). Id.
Accordingly, we sustain the Examiner’s rejection of claims 13–31.
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OUTCOME
The following table summarizes the outcome of the rejection:
Claims Rejected 35 U.S.C. § Basis Affirmed Reversed
13–31 101 Eligibility 13–31
TIME TO RESPOND
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.36(a)(1)(iv).
AFFIRMED