BRIGHT.MD INC.

Patent Trials and Appeals Board

Jan 13, 2021

2020003946 (P.T.A.B. Jan. 13, 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.
14/871,767 09/30/2015 RAYMOND A. COSTANTINI 7552-0003 7308
104337 7590 01/13/2021
Renaissance IP Law Group LLP (DAC)
4804 NW Bethany Blvd.
Ste l-2,219
Portland, OR 97229
EXAMINER
BLANCHETTE, JOSHUA B
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
01/13/2021 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):
david.crowther@renaissanceiplaw.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND A. COSTANTINI, MARK L. SWINTH,
CORY D. DODT, ASHLEY S. FISHER, and NATHAN P. COOPER
Appeal 2020-003946
Application 14/871,767
Technology Center 3600

Before JASON V. MORGAN, MICHAEL J. STRAUSS, and
DAVID J. CUTITTA II, Administrative Patent Judges.

CUTITTA, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–19, all the claims under
consideration. 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 the real party in interest as
BRIGHT.MD INC. Appeal Br. 3.
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2
CLAIMED SUBJECT MATTER
Summary
Appellant’s claimed subject matter relates to providing automated
medical diagnosis and treatment support to health care providers and
patients. Spec. 3:25–27.2 “A patient can indicate a chief complaint such as
chest pain, ear discomfort, a rash, or the like” and a “module selector can
receive the chief complaint and select a particular clinical module.” Spec.,
Abstract. Then, “[a]n evaluator logic section can receive and process the
selected clinical module” and “[b]ased on the selected clinical module, the
evaluator logic section can cause a dynamic interview to be conducted with
the patient, and can map individual question responses to various possible
diagnoses.” Id.
Exemplary Claims
Independent claims 1 and 16, reproduced below, exemplify the
claimed subject matter:
1. A non-transitory machine-readable medium
comprising instructions executable by one or more processors,
the instructions comprising instructions to:
store a plurality of clinical modules, each including one
or more interview questions;
select, by a module selector, a clinical module from
among the plurality of clinical modules based on a chief
complaint received from a patient;

2 We refer to: (1) the originally filed Specification filed September 30, 2015
(“Spec.”); (2) the Final Office Action mailed August 14, 2019 (“Final
Act.”); (3) the Appeal Brief filed January 29, 2020 (“Appeal Br.”); (4) the
Examiner’s Answer mailed March 4, 2020 (“Ans.”); and (5) the Reply Brief
filed May 2, 2020 (“Reply Br.”).
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process, by an evaluator logic section, the selected
clinical module; and
conduct, by a survey presentation section, a dynamic
interview with the patient based at least on a selected subset of
interview questions from among the one or more interview
questions from the selected clinical module.
16. A method for automatically providing a medical
diagnosis and treatment support, the method comprising:
receiving, by an automated medical diagnosis and
treatment support apparatus, a chief complaint from a patient;
selecting, by a module selector of the automated medical
diagnosis and treatment support apparatus, based on the chief
complaint, a clinical module from among a plurality of clinical
modules, wherein the selected clinical module includes a
plurality of interview questions and clinical logic rules
associated with the chief complaint;
receiving, by a rules engine of the automated medical
diagnosis and treatment support apparatus, the selected clinical
module;
receiving, by the rules engine, non question-based inputs;
selecting, by the rules engine, a subset of the plurality of
interview questions based at least on the non question-based
inputs;
conducting, by a survey presentation section, a dynamic
interview with the patient including the subset of the plurality
of interview questions;
receiving, by the rules engine, a plurality of responses
from the patient to the subset of the plurality of interview
questions; and
determining, by the rules engine, a next question based at
least on the non question-based inputs and the responses from
the patient to the subset of the plurality of interview questions.
Appeal Br. 30 (CLAIMS APPENDIX).
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REFERENCES
The Examiner relies on the following prior art references:3
Name Reference Date
Iliff (“Iliff ’176”) US 5,660,176 Aug. 26, 1997
Huyn US 2002/0035486 A1 Mar. 21, 2002
Teitelbaum US 6,607,482 B1 Aug. 19, 2003
Iliff (“Iliff ’332”) US 2004/0199332 A1 Oct. 7, 2004
Keenen EP 1 528 500 A1 May 4, 2005

REJECTIONS
The Examiner makes the following rejections:
Claims
Rejected 35 U.S.C. § References
Final Act.
1, 2, 5, 15 103 Teitelbaum, Huyn 3
3, 4 103 Teitelbaum, Huyn,
Keenen
6
6–14 103 Teitelbaum, Huyn,
Iliff ’332
7
16, 17 103 Teitelbaum,
Iliff ’332
11
18 103 Teitelbaum,
Iliff ’332, Iliff ’176,
Keenen
14
19 103 Huyn, Teitelbaum,
Keenen, Iliff ’332
16

OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of Appellant’s arguments and evidence.
Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2019).

3 All citations to the references use the first-named inventor or author only.
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We disagree with Appellant that the Examiner errs and adopt as our own the
findings and reasons set forth by the Examiner to the extent consistent with
our analysis herein. Final Act. 2–24; Ans. 3–17. We add the following
primarily for emphasis.
Independent Claim 1
“clinical modules, each including . . . interview questions”
The Examiner initially relies on Teitelbaum alone to teach or suggest,
“a plurality of clinical modules, each including one or more interview
questions,” as recited in claim 1. Final Act. 3 (citing Teitelbaum 2:30–32,
3:14–17); Ans. 4 (citing Teitelbaum Fig. 1, 7:23–26).
Appellant argues that “Teitelbaum’s ‘basic symptom module’ is a
single module” and therefore “Teitelbaum fails to disclose multiple different
clinical modules, let alone each with its own separate interview questions.”
Appeal Br. 9.
Appellant fails to address the Examiner’s finding that “Tietelbaum
discloses numerous clinical modules including one or more interview
questions. FIG. 1 shows a Diagnosis Module, a Basic Symptom Module,
and a Systems Review Module.” Ans. 4 (citing Teitelbaum Fig. 1, 7:23–26).
We agree with the Examiner’s finding, noting that, in addition to the Basic
Symptom Module, in Teitelbaum, “[t]he Systems Review Module 105 asks
the patient questions regarding symptoms the patient is experiencing in
relation to the patient’s systems.” Teitelbaum 4:31–34. Accordingly,
Appellant’s argument that “Teitelbaum fails to disclose multiple different
clinical modules,” as claimed, is unpersuasive. Appeal Br. 9. Moreover,
Appellant fails to address the Examiner’s finding that Hyun also teaches the
limitation at issue. Ans. 4 (citing Huyn ¶ 69).
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“select . . . a clinical module . . . based on a chief complaint”
The Examiner relies on Teitelbaum to teach or suggest, selecting “a
clinical module from among the plurality of clinical modules based on a
chief complaint received from a patient,” as recited in claim 1. Final Act. 3
(citing Teitelbaum 2:33–35, 4:31–43); Ans. 4 (citing Teitelbaum Fig. 1,
7:23–26; Huyn ¶ 69).
Appellant argues that Teitelbaum does not teach that “its ‘systems
review module’ selects a clinical module from among the plurality of
clinical modules, as required by claim 1. To the contrary, Teitelbaum’s
‘systems review module’ goes through a laborious process of asking ‘the
patient questions regarding symptoms the patient is experiencing in relation
to the patient’s systems.’” Appeal Br. 10 (citing Teitelbaum 4:31–43).
Appellant further argues that “Teitelbaum never gathers a chief complaint
from the patient.” Appeal Br. 11.
The Examiner responds that:
The broadest reasonable interpretation of this claim includes
selecting any subset of clinical interview questions. Teitelbaum
teaches this in column 7 where questionnaires are broken up into
systems checklists which are presented to the user, for example,
questions specific to the hypothalamic gland are presented to
users who diseases of that gland. Col. 7 lines 23–26. Addition-
ally, Teitelbaum teaches, “[t]he Systems Review Module 105
asks the patient questions regarding symptoms the patient is
experiencing in relation to the patient’ systems.” Col. 5 lines 27–
30. Both of these passages describe a subset of interview
questions that are presented to a user.
Ans. 4. Appellant’s arguments that Teitelbaum never gathers a chief
complaint” and that “Teitelbaum’s ‘systems review module’ goes through a
laborious process” are unpersuasive. Appeal Br. 10–11. The portions of
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Teitelbaum cited by the Examiner discuss selecting a sub-set of interview
questions based on a chief complaint, i.e., “Chronic Fatigue Syndrome or
Fibromyalgia.” Teitelbaum 7:23–26. Appellant provides insufficient
evidence or persuasive reasoning that specifically addresses the Examiner’s
findings based on Teitelbaum.
Appellant further argues that Teitelbaum’s “presenting questions to a
user is not an equivalent of selecting” questions, as claimed. Reply Br. 6.
Appellant’s argument is unpersuasive for lack of evidence or reasoned
explanation in support of the asserted conclusion, particularly because one
skilled in the art would understand that to present a question, the question
must first be selected.
Appellant also argues that Teitelbaum does not teach presenting a
subset of questions because “[e]ven though questions specific to the
hypothalamic gland are presented to the user in Teitelbaum, all of the other
questions are also presented to the user in Teitelbaum.” Reply Br. 6–7
(citing Teitelbaum 3:23–26, 4:31–48). This argument does not persuasively
rebut the Examiner’s finding that “Teitelbaum teaches: ‘In the case of a
patient suffering from Chronic Fatigue Syndrome or Fibromyalgia the
questions are more specifically directed to find how the hypothalamic gland
is being affected.’” Ans. 4 (citing Teitelbaum 7:23–26). Appellant fails to
show error in the Examiner’s finding that by specifically focusing on
questions related to the hypothalamus gland, Teitelbaum presents a subset of
questions in response to a chief complaint of Chronic Fatigue Syndrome or
Fibromyalgia. Id.
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Still further, Appellant fails to address the Examiner’s finding that
“[t]his limitation is also taught by Huyn’s ‘disease specific questionnaires’
. . . and ‘Chief Complaint form.’” Ans. 5 (citing Huyn ¶¶ 69, 71).
“process, by an evaluator logic section, the selected clinical module”
The Examiner relies on Teitelbaum to teach or suggest, “process, by
an evaluator logic section, the selected clinical module,” as recited in claim
1. Final Act. 4 (citing Teitelbaum 5:27–30).
Appellant argues that “Teitelbaum’s ‘diagnosis module’ does not
process a selected module. Rather, Teitelbaum’s ‘diagnosis module’
evaluates all answers obtained from the patient.” Appeal Br. 11 (citing
Teitelbaum 5:27–30).
The Examiner responds, and we agree, that in “[t]he broadest
reasonable interpretation of processing ‘the selected clinical module’
includes the selected clinical module and all other modules.” Ans. 5.
Moreover, Appellant’s arguments fail to address the Examiner’s
determination that the claim does not require “only selected answers be
processed to the exclusion of the non-selected ones.” Id. Teitelbaum also
discloses that “the basic symptom module 100 may be part of a computer
program, that queries the patient with regard to basic symptoms the patient is
experiencing.” Teitelbaum 3:14–16. But Appellant fails to distinguish the
disputed limitation from Teitelbaum’s selection and processing of basic
symptom module 100 to query the patient.
Furthermore, Appellant fails to address the Examiner’s accurate
finding that “[t]his limitation is also taught by Huyn’s selecting and forming
of questions into a form 124.” Ans. 5 (citing Huyn Fig. 9A).
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“conduct . . . a dynamic interview with the patient”
The Examiner relies on Teitelbaum to teach or suggest, “conduct, by a
survey presentation section, a dynamic interview with the patient based at
least on a selected subset of interview questions from among the one or more
interview questions,” as recited in claim 1. Final Act. 4 (citing Teitelbaum
7:23–37, Figs. 2–7).
Appellant argues that Teitelbaum fails to teach conducting an
interview based on a subset of questions because “[i]n Teitelbaum, it is
required that the patient answer all questions of the entire questionnaire.”
Appeal Br. 12.
The Examiner responds by finding that:
There is nothing in the claim language that would require only
questions be presented to the exclusion of the non-selected ones.
A system that selects a subset of questions and asks them in
addition to asking every question would read on the broadest
reasonable interpretation of this claim. However, even if a
narrower interpretation were required by the claim language
Teitelbaum teaches a hypothalamic gland specific questionnaire
(i.e., a subset of questions specific for patients with fibromy-
algia).
Ans. 5–6 (citing Teitelbaum 7:23–26).
Appellant fails to show error in the Examiner’s claim interpretation or
in the finding that Teitelbaum’s hypothalamus gland-specific questionnaire
teaches conducting an interview based on a subset of questions.
Appellant’s Declaration Under 37 C.F.R. § 1.132
“On appeal to the Board, [Appellant] can overcome a rejection by
showing insufficient evidence of prima facie obviousness or by rebutting the
prima facie case with evidence of secondary indicia of nonobviousness.” In
re Kahn, 441 F.3d 977, 985–86 (Fed. Cir. 2006) (quoting In re Rouffet, 149
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F.3d 1350, 1355 (Fed. Cir. 1998)). Here, Appellant submits a declaration
under 37 C.F.R. § 1.132 from Mark L. Swinth (May 7, 2019) (hereinafter
“Swinth Decl.”) asserting that secondary considerations related to
commercial success and long-felt need provide evidence of nonobviousness.
Evidence of secondary considerations, such as that presented by
Appellant, must be considered in an obviousness determination under 35
U.S.C. § 103. However, “[e]vidence of secondary considerations must be
reasonably commensurate with the scope of the claims.” Wyers v. Master
Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010).
Appellant argues that the declaration provides evidence that they have
had considerable commercial success in selling their SmartExam product.
Appeal Br. 27 (citing Swinth Decl. 1–2).
We are unpersuaded. To demonstrate non-obviousness based on
commercial success, Appellant must provide evidence that establishes the
existence of commercial success, and a nexus between that success and the
merits of the claimed invention. Iron Grip Barbell Co., Inc. v. USA Sports,
Inc., 392 F.3d 1317, 1324 (Fed. Cir. 2005). The evidence is required to
show that “the successful product is the invention disclosed and claimed.”
J.T. Eaton & Co. v. Atlantic Paste & Glue Co., 106 F.3d 1563, 1571 (Fed.
Cir. 1997). To establish a proper nexus between the claimed invention and
the commercial success of a product, Appellant must offer “proof that the
sales [of the product] were a direct result of the unique characteristics of the
claimed invention—as opposed to other economic and commercial factors
unrelated to the quality of the patented subject matter.” In re Huang, 100
F.3d 135, 140 (Fed. Cir. 1996).
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Appellant’s allegations regarding the SmartExam product’s
commercial success are unpersuasive. First, the Declaration’s assertion that
“healthcare delivery systems are buying SmartExam” does not provide
objective evidence of sales or commercial success. Swinth Decl. 2.
Second, the declaration does not provide sufficient evidence to
support Appellant’s argument that Appellant “has a dominant market
position.” Reply Br. 12. We are unpersuaded that Forrester®’s statement
that “‘Bright.md Leads The Pack,’” is “actual proof” of SmartExam’s
commercial success because Forrester®’s statement refers to the real party in
interest, rather than the SmartExam product. Id.
Third, we are unpersuaded that the SmartExam product or its
purported success is linked to the claimed subject matter. Appellant’s
Declaration offers insufficient evidence to show that SmartExam sales “were
a direct result of the unique characteristics of the claimed invention.”
Huang, 100 F.3d at 140.
Accordingly, Appellant does not provide sufficient evidence to
demonstrate commercial success that is commensurate with the claim scope.
Appellant next argues that there has been a long-felt need for the
current product. Appeal Br. 27.
Establishing a long-felt need requires objective evidence showing
existence of a persistent problem recognized by those of ordinary skill in the
art for which a solution was not known. In re Gershon, 372 F.2d 535, 539–
39 (CCPA 1967). There must be evidence of “a failure of others to provide
a feasible solution to [a] long-standing problem” and evidence “that experts
did not foresee” the solution claimed. In re Piasecki, 745 F.2d 1468, 1475
(Fed. Cir. 1984). Satisfaction of a long-felt but unresolved need is not
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evidence of non-obviousness unless it is shown that widespread efforts of
skilled workers having knowledge of the prior art had failed to find a
solution to the problem. In re Allen, 324 F.2d 993, 997 (CCPA 1963); see
also Toledo Pressed Steel Co. v. Standard Parts, Inc., 307 U.S. 350, 356
(1939).
Appellant argues that the statement in the Declaration that there is
presently “a [desperately] short supply of primary care providers” provides
evidence that there is “a long-felt need by nearly all Americans for more
convenient and less-costly access to healthcare.” Appeal Br. 26 (citing
Swinth Decl. 1). This argument is unpersuasive because even assuming as
accurate the assertion that there is a long-felt need by all Americans for less-
costly access to healthcare, Appellant has not provided evidence of “a failure
of others to provide a feasible solution to [a] long-standing problem” (In re
Piasecki, 745 F.2d at 1475) that is uniquely addressed by the claimed
invention or shown that widespread efforts of skilled workers having
knowledge of the prior art had failed to find a solution to the problem (In re
Allen, 324 F.2d at 997).
For the reasons discussed, Appellant has not persuaded us of error in
the Examiner’s obviousness rejection of independent claim 1. We,
therefore, sustain the Examiner’s rejection of that claim, as well as the
rejections of independent claim 19 and dependent claims 3, 10, 12, 13, and
15, which Appellant does not argue separately with particularity. Appeal
Br. 10–21.
Dependent Claim 2
The Examiner finds Teitelbaum teaches or suggests, “generate . . . an
automated chart note narrative that reads like and appears as a subjective,
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objective, assessment, and plan (SOAP) note,” as recited in claim 2. Final
Act. 5 (citing Teitelbaum 8:25–9:2); Ans. 7.
Appellant argues that a “SOAP note has a common format” and
“Teitelbaum does not disclose generating an automated chart note narrative
that reads like and appears as a SOAP note.” Appeal Br. 13. Appellant
concludes that “the Final Office Action uses an unreasonably broad
interpretation of ‘SOAP note.’” Id.
This argument is unpersuasive because Appellant fails to show the
Examiner’s interpretation is inconsistent with the Specification, or otherwise
unreasonably broad. As the Examiner notes, Appellant is “arguing for a
narrow type of SOAP note formatting that is neither required by the claim
nor described in the Specification” and as drafted, “the claim cannot be
distinguished from Teitelbaum which includes each and every portion of the
SOAP note in its report.” Ans. 7 (citing Teitelbaum, cols. 7–8).
Dependent Claim 5
The Examiner finds Teitelbaum teaches or suggests, “automatically
generate, by the summary and plan generator, a detailed clinical summary,”
as recited in claim 5. Final Act. 5 (citing Teitelbaum 8:27–67); Ans. 6–7.
Appellant argues “nowhere does Teitelbaum teach that its report is
automatically generated,” and “[i]t is just as likely that the Teitelbaum’s
final report is manually generated based on the answers to its questionnaire.”
Appeal Br. 14.
We are unpersuaded because we agree with the Examiner finding that
“[w]hile Teitelbaum does not use the word ‘automatic’ it instead uses the
term ‘automated,’” as in set forth in its title ( “[a]utomated questionnaire for
assisting in the diagnosis and treatment of medical problems and for data
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gathering, analysis and organization to make a complete medical history and
illness record”) and “Teitelbaum further teaches that the report is generated
by a computer in lieu of a physician by stating: ‘the present invention . . . (2)
acts as a computerized physician.’” Ans. 7. Appellant’s additional
argument that “a questionnaire is not a report” is unpersuasive for lack of
evidence or persuasive reasoning. Reply Br. 8.
Dependent Claim 4
The Examiner finds Teitelbaum teaches or suggests, “store a patient
record,” as recited in claim 4. Final Act. 7 (citing Keenen ¶ 21).
Appellant argues that in Keenen, “there is no mention of an EMR
[(electronic medical record)] update, a customized treatment plan, medical
prescription information, or a chart note narrative.” Appeal Br. 15.
Appellant’s argument is unpersuasive. We agree with the Examiner’s
finding that Keenen’s completed questionnaire stored in the database teaches
or suggests “store a patient record,” as recited in claim 4. Appellant’s
argument that Keenen fails to mention the specific types of patient record
such as “an EMR update, a customized treatment plan, medical prescription
information, or a chart note narrative” is unpersuasive because this data is
merely non-functional descriptive material. Appellant provides no evidence
that this specifically-labeled data functionally affects the process of
conducting a patient interview any differently than generically storing
patient records. See Ex parte Nehls, 88 USPQ2d 1883, 1889 (BPAI 2008)
(precedential) (finding there was no evidence that the particular data
sequence “functionally affect[s] the process of comparing a target sequence
to a database by changing the efficiency or accuracy or any other
characteristic of the comparison.”). Rather, the data is merely information
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being stored by a computer in a conventional way. The specific types of
patient record recited in the claim do not affect how the claimed instructions
or method is performed—the method is carried out the same way regardless
of which specific types of patient record are stored. For this reason, we
determine the claimed storing of a patent record does not differ from
Keenen’s storing of patient data in a nonobvious way; i.e., in more than the
content of stored, nonfunctional descriptive material.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 4.
Dependent Claim 6
The Examiner finds Teitelbaum teaches or suggests, receive the chief
complaint from a patient, “wherein the chief complaint includes a chief
medical-related complaint from the patient,” as recited in claim 6. Final
Act. 7 (citing Teitelbaum 3:14–25).
Appellant argues that in Teitelbaum, “there is no mention of receiving
a chief complaint from a patient. To the contrary, in Teitelbaum, the patient
is given a questionnaire and provides various answers based on symptoms.”
Appeal Br. 16.
Appellant’s fails to show error in the Examiner’s finding that
“Teitelbaum teaches: ‘In the case of a patient suffering from Chronic
Fatigue Syndrome or Fibromyalgia the questions are more specifically
directed to find how the hypothalmic gland is being affected’” and that
“[t]he plain meaning of this teaching falls within the broadest reasonable
interpretation of the limitation.” Ans. 8 (citing Teitelbaum 7:23–26)
(emphasis added).
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In addition, the Examiner finds “[t]his limitation is also taught by
Huyn’s ‘disease specific questionnaires’ . . . and ‘Chief Complaint form.’”
Ans. 8 (citing Huyn ¶¶ 69, 71). Appellant does not rebut the Examiner’s
additional reasoning and findings. See Reply Br. 9. Consequently,
Appellant does not persuade us of error in these additional factual findings
or in the Examiner’s conclusion of obviousness.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 6.
Dependent Claim 7
The Examiner finds the combination of Teitelbaum, Huyn, and Iliff
’332 teaches or suggests “determine the selected subset of interview
questions . . . based at least on the non question-based inputs,” as recited in
claim 7. Final Act. 8 (citing Teitelbaum Figs. 2–7, Iliff ’332 ¶¶ 90, 298).
The Examiner determines “[i]t would have been obvious to one having
ordinary skill in the art before the effective filing date to include diagnosing
mechanisms of Iliff within the questionnaire and diagnosis platform of
Teitelbaum and Huyn because Iliff’s mechanisms dynamically adjusts to be
more convenient for the patient.” Final Act. 8 (citing Iliff ’332 ¶¶ 218–28).
Appellant argues that “Iliff’s synergy concept is not based on
Teitelbaum’s lab results.” Appeal Br. 17–18.
Appellant’s argument is not persuasive. The Examiner does not find
that Iliff’s synergy concept is based on Teitelbaum’s lab results, but instead
the Examiner determines the limitation would have been obvious to one of
skill in the art based on the combined teachings of the references and that
there was sufficient motivation to combine these teachings. Final Act. 8;
Ans. 9. Appellant’s argument fails to address the rejection made by the
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Examiner because Appellant does not address specifically the Examiner’s
determination that the limitation would have been obvious in view of the
combined teachings of the references.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 7.
Dependent Claim 8
The Examiner finds Iliff ’332 teaches or suggests “determine . . . the
selected subset from among the one or more interview questions . . . based at
least on one or more previous interview responses,” as recited in claim 8.
Final Act. 9 (citing Iliff ’332 ¶ 489).
Appellant argues that “Iliff does not use its previously stored time
profiles to determine a selected subset of interview questions that are asked
next of the patient” because the previously stored time profiles of Iliff ’332
are used to add ‘extra diagnostic weight to diseases that match the patient.’”
Appeal Br. 18.
The Examiner responds that Appellant’s argument “does not take into
account that Iliff uses switches questions ‘based on a new response by the
patient, which negates or significantly modifies a previous response.’”
Ans. 10. Also, “Iliff teaches additional questioning ‘related to the
previously evaluated symptom.’” Ans. 10 (citing Iliff ’332 ¶ 245).
We agree with the Examiner and Appellant does not rebut the
Examiner’s additional reasoning and findings. See generally Reply Br.
Consequently, Appellant does not persuade us of error in these additional
factual findings or in the Examiner’s conclusion of obviousness.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 8.
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Dependent Claim 11
The Examiner finds Iliff ’332 teaches or suggests “assign . . . the
diagnosis weight to each of the plurality of diagnoses based at least on the
selected clinical module, the interview responses, clinical logic rules of the
selected clinical module, and the non question-based inputs,” as recited in
claim 11. Final Act. 9 (citing Iliff ’332 ¶ 489).
Appellant argues that in Teitelbaum, “only the answers are given a
point value, which are then tallied to determine a point value for a
diagnosis” and “[n]owhere does Teitelbaum teach that its tallies are based on
clinical logic rules, let alone based on non question-based inputs.” Appeal
Br. 19 (citing Teitelbaum 7:58–67).
The Examiner responds by finding that “Teitelbaum teaches ‘A final
analysis is then generated after all the questions have been answered and the
answers have been analyzed’” and “Iliff expands that to assign diagnostic
weights ‘after every response from the patient’. . . . These inputs include lab
inputs in both references as described above.” Ans. 11 (citing Teitelbaum
7:63–62, Iliff ’332 ¶ 298).
We agree with the Examiner and Appellant does not rebut the
Examiner’s additional reasoning and findings. See generally Reply Br.
Consequently, Appellant does not persuade us of error in these additional
factual findings or in the Examiner’s conclusion of obviousness.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 11.
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Dependent Claim 14
The Examiner finds Iliff ’332 teaches or suggests “the evaluator logic
section is configured to determine no suggested diagnosis from among the
plurality of diagnoses when all of the plurality of diagnoses are ruled out by
the evaluator logic section,” as recited in claim 14. Final Act. 11 (citing Iliff
’332 Fig. 32, step 3250).
Appellant argues that “determining that there is no suggested
diagnosis does not occur in Iliff because Iliff’s very next step 3254 is to
evaluate the remaining disease elements.” Appeal Br. 20.
The Examiner responds that “Appellants are applying a narrower
reading of the limitation than required. When given the broadest reasonable
interpretation, the claims are taught by the cited combination because at a
point in time it is determined that there are no suggested diagnoses when all
diagnoses are ruled out.” Ans. 11.
We agree with the Examiner and Appellant does not rebut the
Examiner’s additional reasoning and findings. See generally Reply Br.
Consequently, Appellant does not persuade us of error in these additional
factual findings or in the Examiner’s conclusion of obviousness.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 14.
Independent Claim 16
The Examiner finds Teitelbaum and Iliff ’332 teaches or suggests,
“determining, by the rules engine, a next question based at least on the non
question-based inputs,” as recited in claim 16. Final Act. 14 (citing
Teitelbaum ¶ 20, Fig. 7; Iliff ’332, Fig. 32B, ¶¶ 90, 298).
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Appellant argues that Iliff ’332 fails to disclose this limitation because
“if Iliff’s lab inputs are the non question-based inputs, then a next question is
not based on the alleged non question based inputs. To the contrary, while
Iliff may dynamically adjust its diagnostic process as described in ¶ [0298],
there is no connection between Iliff’s dynamic adjustments and the lab
results.” Appeal Br. 21.
Appellant’s arguments are unresponsive to the rejection because
Appellant argues Iliff ’332 alone while the Examiner relies on the combined
teaching of Teitelbaum and Iliff ’332. Of particular relevance, the Examiner
responds to the argument by finding that “Teitelbaum teaches lab inputs
which are not question-based in FIG. 7, and Iliff ’332 teaches entering lab
inputs in par. [0090] and ‘dynamically adjust the very diagnostic process
itself after every response form the patient’ in par. [0298].” Ans. 12.
We, therefore, sustain the Examiner’s 35 U.S.C. § 103 rejection of
independent claim 16 and of dependent claim 17, which is not argued
separately, for similar reasons.
Dependent Claim 18
The Examiner finds the combined teachings of Iliff ’176 and Iliff ’332
teach or suggest, “determining, by the rules engine, whether to terminate the
dynamic interview based on one or more the responses from the patient” and
“when it is determined that the interview should not be terminated, placing
the dynamic interview in a queue,” as recited in claim 18. Final Act. 14
(citing Iliff ’332, Fig. 32B); Ans. 6–7.
Appellant argues that in “Iliff’s FIG. 32B, the step 3246 that causes an
end at 3248 to the evaluation of symptoms is not based on any responses
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from the patient” but instead “depends on whether a diagnostic score for any
disease element has reached or passed a threshold value.” Appeal Br. 22.
The Examiner responds by finding that “Iliff ’176 expands on the
combination of Teitelbaum and Iliff [’332] to include workflows for
terminating interviews based on patient responses.” Ans. 12 (citing Iliff
’176, 25:61–66).
We agree with the Examiner and Appellant does not rebut the
Examiner’s additional reasoning and findings. See Reply Br. 10.
Consequently, Appellant does not persuade us of error in these additional
factual findings or in the Examiner’s conclusion of obviousness.
Appellant next argues the Examiner-cited portions of Iliff ’176 fail to
teach “notifying a health care provider of the dynamic interview in the
queue,” as recited in claim 18. Appeal Br. 23.
The Examiner responds by finding that “Iliff ’176 teaches a workflow
for processing a patient after deciding not to terminate the interview” and
“[w]hen a patient enters the treatment queue portion of the workflow, Iliff
’176 describes at least two types of notifications sent to the health care
provider: ‘The MDATA system will also send you a questionnaire to fill out
and give to your doctor’ in col. 42 lines 1–3; ‘notify patients’ doctors’”
Ans. 12 (citing Iliff ’176, 25:25–50, 42:1–3, 56:49).
Appellant responds that “neither of the two types of notifications in
Iliff ’176 are notifications regarding a dynamic interview in a queue.” Reply
Br. 10.
This argument is unpersuasive because Appellant fails to sufficiently
explain why MDATA system’s storage of interview questions or the cited
treatment queue portion of the workflow fails to teach a queue.
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Appellant next argues the Examiner-cited portions of Iliff ’176 fail to
teach “removing the dynamic interview from the queue” and “determining
whether to remotely treat the patient based at least on the dynamic interview
removed from the queue,” as recited in claim 18. Appeal Br. 23.
The Examiner responds by finding that “Iliff ’176 teaches this by
disclosing the workflow for terminating interviews for emergencies.”
Ans. 12. The Examiner finds Iliff ’176 discloses
Moving to decision state 308, any patient found to be critically
ill is instructed to dial the emergency response telephone number
911 at state 309 or will be automatically connected to the nearest
emergency medical services system in the patient’s area. The
telephone call is terminated by the computer 102 at state 310.
Id. (citing Iliff ’176, 25:61–66).
We agree with the Examiner and Appellant does not rebut the
Examiner’s additional reasoning and findings. See Reply Br. 10.
Consequently, Appellant does not persuade us of error in these additional
factual findings or in the Examiner’s conclusion of obviousness.
We, therefore, sustain the Examiner’s obviousness rejection of
dependent claim 18.
CONCLUSION
We affirm the Examiner’s decision to reject claims 1–19 under
35 U.S.C. § 103.4

4 In the event of further prosecution, the Examiner may wish to review the
claims for compliance with 35 U.S.C. § 101, and particularly whether the
claims are directed to an abstract idea in the form of a mental process in
view of the 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019).
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DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C. §
References Affirmed Reversed
1, 2, 5, 15 103 Teitelbaum, Huyn 11, 2, 5, 15
3, 4 103 Teitelbaum, Huyn,
Keenen
3, 4
6–14 103 Teitelbaum, Huyn,
Iliff ’332
6–14
16, 17 103 Teitelbaum, Iliff ’332 16, 17
18 Teitelbaum, Iliff ’332,
Iliff ’176, Keenen
18
19 Huyn, Teitelbaum,
Keenen, Iliff ’332
19
Overall
Outcome
1–19
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED