Cornelis Van Zon et al.Download PDFPatent Trials and Appeals BoardAug 3, 202013996586 - (D) (P.T.A.B. Aug. 3, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/996,586 06/21/2013 Cornelis Conradus Adrianus Van Zon 2010P01180WOUS 3518 24737 7590 08/03/2020 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus Avenue Suite 340 Valhalla, NY 10595 EXAMINER LONG, FONYA M ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 08/03/2020 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): katelyn.mulroy@philips.com marianne.fox@philips.com patti.demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte CORNELIS CONRADUS ADRIANUS VAN ZON, WILLIAM PALMER LORD, and CHARLES LAGOR ____________ Appeal 2020-000314 Application 13/996,586 Technology Center 3600 ____________ Before MAHSHID D. SAADAT, ELENI MANTIS MERCADER, and LINZY T. McCARTNEY, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–5, 10–12, 15, 16, and 20–27, which are all the claims pending in this 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 the real party in interest as Koninklijke Philips N.V. Appeal Br. 1. Appeal 2020-000314 Application 13/996,586 2 STATEMENT OF THE CASE Introduction Appellant’s disclosure is directed to clinical decision making related to “tracking and/or reviewing the performance of the workflow or steps of clinical workflow management and/or decision support (CWM/DS) systems.” See Spec. 1:2–5. Claim 1 is illustrative of the invention and reads as follows: 1. A computer-implemented method for comparing performed steps in clinical protocols and/or computer interpretable guidelines, the method comprising: receiving current workflow data and patient data for a plurality of patients and storing the workflow data and patient data including a plurality of care steps for each of the patients and the patient data including clinical data collected from each of the patient; receiving a selection of one of the plurality of care steps previously performed on one of the patients from a user interface; and on a display device, displaying the workflow data and the probability of a diagnosis or outcome of a certain care step given the patient data at the time of the performance of the selected one of the plurality of care steps on the patient; and performing a comparative analysis to explore alternative hypothetical paths which are not stored in a database, including: applying a probability model to the patient data at the time the selected previously performed step was performed prior to receiving the current data to calculate conditional probabilities for each of a plurality of outcomes or diagnoses given the patient data at the time the previously performed step was performed to provide one or more clinical recommendations; pursuing a hypothetical path; and Appeal 2020-000314 Application 13/996,586 3 viewing, on the display, a different possible outcome of the pursued hypothetical path and observing whether or not the pursued hypothetical path yield a more efficient recommendation; wherein the receiving and storing workflow data and patient data, the performing of the comparative analysis, and the selecting and controlling operations are performed by one or more computers. The Examiner’s Rejections Claims 1–5, 10–12, 15, 16, and 20–27 stand rejected under 35 U.S.C. § 101 as directed to non-statutory subject matter. See Final Act. 3–4. Claims 1–5, 10–12, 15, 16, 20–25, and 27 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Weidenhaupt (US 2008/0235057 A1; pub. Sept. 25, 2008) and Burton (US 2009/0018882 A1; pub. Jan. 15, 2009). See Final Act. 4–9. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Weidenhaupt, Burton, and Hoyme (US 2007 /0179349 A1; pub. Aug. 2, 2007). See Final Act. 10. ANALYSIS SECTION 101 REJECTION We have reviewed the Examiner’s rejection in light of Appellant’s contentions and the evidence of record. We agree with the Examiner and highlight the following for emphasis. Rejection and Arguments The Examiner finds claim 1 “is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.” Final Act. 3. The Examiner identifies the functions Appeal 2020-000314 Application 13/996,586 4 recited in claim 1, as well as claims 10 and 16, and further explains: Those functions, when considered as an ordered combination are found to be directed to and abstract idea similar to collecting and comparing known information (Classen), and applying mathematical formulas to data to organize and manipulate such data (Digitech). Indeed, Applicant’s limitations are directed to receiving patient data and comparing such data to different possible paths by applying mathematical relationships to the data to determine probabilities of outcomes/diagnoses. Id. The Examiner also determines that the additional elements recited in the claims do not amount to significantly more than the judicial exception “because the additional elements pertain to receiving, selecting and displaying data which are routine and well-understood in healthcare technologies, and using well-known patient monitors and processor to performed the claimed functions (See ¶ 32, 47, 66 of Applicant’s Pre-Grant Pub No. 2013/0282405).” Id. According to the Examiner, “it is routine in medical/healthcare industries to have users input data to control a device based on a guideline, protocol or after one or more users have looked at patient data and decided what the next step ought to be.” Final Act. 3–4. Appellant contends claim 1 is not directed to an abstract idea because the claim is directed to the method “for generating . . . probabilities of a diagnosis or outcomes of a certain care step,” and not generating and displaying those elements. Appeal Br. 9. Appellant further contends, although the recited method is able to be run “on a general-purpose computer,” the recited method steps are not directed to an abstract idea, nor do they “set forth merely a series of well-understood steps or computer operations.” Appeal Br. 9–10. According to Appellant, similar to the claims in Core Wireless Licensing S.A.R.L. v. LG Elec., Inc., 880 F.3d 1356 (Fed. Appeal 2020-000314 Application 13/996,586 5 Cir. 2018), “[c]laim l thus does not merely recite some generic idea of collecting and comparing known information or applying a mathematical formula (none is recited in claim 1), but rather claim l is directed to a particular manner of providing retrospective analysis of previously performed steps in a clinical protocol or computer interpretable guideline.” Appeal Br. 12–13. Legal Principles 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. 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.”). Appeal 2020-000314 Application 13/996,586 6 Concepts determined to be abstract ideas, and, thus, patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (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 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.”). Appeal 2020-000314 Application 13/996,586 7 If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. In January 2019, the PTO published revised guidance on the application of § 101. USPTO, 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). 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.) Appeal 2020-000314 Application 13/996,586 8 See Guidance, 84 Fed. Reg. at 54–56. Discussion Abstract Idea Independent claim 1 recites an abstract idea because the claim recites a method of organizing human activity, one of the abstract idea groupings listed in the Guidance. See, 84 Fed. Reg. at 52, 53. The Specification at page 5, lines 21–25, describes the invention as a CWM/DS system that “receives patient data from one or more clinical data sources 162 (see Fig. 2) and . . . provides clinical recommendations based on clinical protocols and/or clinical guidelines to one or more consuming clinical applications 164 (see Fig. 2) to promote adherence to the clinical protocols and/or clinical guidelines.” Examples of the recommendations are based on a comparative analysis, where “the CWM/DS system 110 generates a probability model to calculate the conditional probability for each of a plurality of outcomes and diagnoses given the patient data at the time the step was performed.” Spec. 10:29–31. The probability model is further described as “constructed using mixture models that are efficiently learned by the Expectation-Maximization algorithm and the like” and “determines the probability of a diagnosis or outcome of a certain care step given the patient data at the time the step was performed.” Spec. 11:12–16. Claim 1 recites functions performed on a computer including receiving and storing “workflow data and patient data” that include a plurality of care steps, “receiving a selection of one of the plurality of care steps,” and “performing a comparative analysis to explore alternative hypothetical paths.” Additional functions are recited with respect to “displaying the workflow data and the probability of a diagnosis or Appeal 2020-000314 Application 13/996,586 9 outcome” and performing the receiving and storing the data and the comparative analysis and controlling the operations are performed on a computer. Claim 1 also recites that the comparative analysis includes “applying a probability model to the patient data . . . to calculate conditional probabilities for each of a plurality of outcomes,” “pursuing a hypothetical path,” and “viewing, on the display, a different possible outcome.” Claims 10 and 16 recite a system and a decisions support manager, respectively, that perform functions similar to the method steps recited in claim 1. Receiving and storing patient data and the workflow data and performing a comparative analysis using the stored information to evaluate different outcomes or diagnoses do not require a machine, let alone a particular machine, to implement, and therefore fits squarely within the human activity organization category of the agency’s guidelines. See Guidance, 84 Fed. Reg. at 52 (listing exemplary methods of organizing human activity including (3) managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions)). Additionally, the recited methods are abstract similar to collecting and analyzing information which was determined to be an abstract idea in FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016) and how organizing and manipulating information through mathematical correlations was an abstract idea in Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014). Courts have also found claims directed to collecting, recognizing, and storing data in a computer memory to be directed to an abstract idea. Content Extraction and Transmission LLC v. Wells Fargo Bank, National Association, 776 F.3d 1343 (Fed. Cir. 2014). Appeal 2020-000314 Application 13/996,586 10 Furthermore, many of these steps––receiving workflow and patient data, receiving a selection of one of the care steps, performing a comparative analysis (that includes applying a probability model to calculate conditional probabilities for each outcome, pursuing a hypothetical path, and evaluating different possible outcomes)––involve mental processes, i.e., concepts that are performed in the human mind and can be performed by a person using pen and paper. Revised Guidance, 84 Fed. Reg. at 52. Indeed, the Specification also describes obtaining a comprehensive overview of a patient case with many care steps as difficult and a labor and time intensive process that was performed essentially as mental processes. Spec. 1:28–29. Such mental processes are not patent eligible. E.g., CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (holding that a claim whose “steps can be performed in the human mind, or by a human using a pen and paper” is directed to an “unpatentable mental process[ ]”). Thus, we determine that claims 1, 10, and 16 recite abstract ideas involving certain methods of organizing human activity and mental processes related to the judicial exception identified above. Integrating the Abstract Idea into a Practical Application Although claim 1 recites an abstract idea based on these methods of organizing human activity, we nevertheless must still determine whether the abstract idea is integrated into a practical application, namely whether the claim applies, relies on, or uses the abstract idea in a manner that imposes a meaningful limit on the abstract idea, such that the claim is more than a drafting effort designed to monopolize the abstract idea. See Guidance, 84 Fed. Reg. at 54–55. The Revised Guidance references the Manual of Patent Examining Procedure (“MPEP”) §§ 2106.05(a)–(c) and (e)–(h). We Appeal 2020-000314 Application 13/996,586 11 therefore (1) identify whether there are any additional recited elements beyond the abstract idea, and (2) evaluate those elements, along with the limitations that recite an abstract idea, individually and collectively to determine whether they integrate the exception into a practical application. See id. Here, the additional elements recited in claim 1 include the computer components used to carry out the steps of receiving data, displaying data, performing analysis, and viewing different outcomes on a display, which are recited at a high level of generality. See claim 1, stating “wherein the receiving and storing workflow data and patient data, the performing of the comparative analysis, and the selecting and controlling operations are performed by one or more computers.” The additional elements recited claims 10 and 16 include data collection and analysis engines, a computer and a non-transitory computer readable medium, a database, and a display device described as generic storage medium including instructions for performing the associated tasks. See Spec. 12:3–13:2 (describing generic computer components performing generic computer functions using generic software instructions). These elements are also recited at a high level of generality. See claims 10 and 16. The claims do not improve computer functionality, improve another field of technology, utilize a particular machine, or effect a particular physical transformation. Rather, we determine that nothing in the claims imposes a meaningful limit on the judicial exception, such that the claims are more than a drafting effort to monopolize the judicial exception. For example, in claim 1 the steps of (1) “receiving current workflow data and patient data . . . and storing the workflow data and patient data” (2) Appeal 2020-000314 Application 13/996,586 12 “receiving a selection of one of the plurality of care steps” (3) “displaying the workflow data and the probability of a diagnosis or outcome” (4) “performing a comparative analysis . . . including: (4a) “applying a probability model . . . to calculate conditional probabilities for each of a plurality of outcomes” (4b) “pursuing a hypothetical path” and (4c) “viewing, on the display, a different possible outcome” are merely steps performed by a generic computer that do not improve computer functionality. That is, these recited steps (1)–(4c) “do not . . . purport to improve the functioning of the computer itself” but are merely generic functions performed by a conventional processor. Alice, 573 U.S. at 221. Likewise, these same steps (1)–(4c) listed above do not improve the technology of the technical field and merely use generic computer components and functions to perform the steps. Also, the recited method steps (1)–(4c) above do not require a particular machine and can be utilized with a general purpose computer, and the steps performed are purely conventional. In this case, the general purpose computer is merely an object on which the method operates in a conventional manner. See Fig. 2, Spec. 7: 7–19 (describing generic servers, databases, and computers); Fig. 3, Spec. 12:3–13:20 (describing a non-transient computer readable medium, memory devices for storing the instructions and the databases, a processor, input devices, network devices, and a display for displaying the user interface). Further, the claim as a whole fails to effect any particular transformation of an article to a different state. The recited steps (1)–(4c) fail to provide meaningful limitations to limit the judicial exception and rather are mere instructions to apply the method to a generic computer. Appeal 2020-000314 Application 13/996,586 13 We disagree with Appellant (Appeal Br. 12) that claims 1, 10, and 16 “are directed to a particular manner of summarizing and presenting information in electronic devices, i.e.[,] a particular manner of providing retrospective analysis of previously performed steps in a clinical protocol or computer interpretable guideline.” In fact, the holding in Core Wireless Licensing S.A.R.L. v. LG Elec., Inc., 880 F.3d 1356 (Fed. Cir. 2018) shows why the abstract ideas in this case are not integrated into a practical application. See id. The claims in Core Wireless recited an improved user interface. 880 F.3d at 1362. The claimed “application summary” specified a particular manner to access a summary window, a particular type of data to be displayed in the summary window, and a particular time to display the summary window when an application is in an un-launched state. Id. at 1362–63. The claims thus recited a specific improvement to user interfaces that displayed a limited set of information using unconventional user interface methods. Id. at 1363. Here, we are not persuaded that the focus of claims 1, 10, and 16 is on a technical improvement of a computer or its components’ functionality or efficiency, or otherwise changes the way those devices function. To the extent Appellant contends that the claimed invention uses a particular data structure, user interface, or probability model to improve a computer’s functionality or efficiency, or otherwise change the way that device functions, there is no persuasive evidence on this record to substantiate such a contention. In that regard, we observe that, similar to the data presented in a spread sheet, workflow and patient data could be displayed and correlated to different outcomes and normalized based on a probability model to present different outcomes. See Fig. 4, Spec. 9:7–10:19 Appeal 2020-000314 Application 13/996,586 14 (describing the analysis engine 176 providing and comparing different outcomes). Considering the elements of the claim both individually and as “an ordered combination,” the functions performed by the computer system at each step of the process are purely conventional. Each step of the claimed method, or each of the functions performed by the system claims, does no more than require a generic computer to perform a generic computer function. Thus, the claimed elements have not been shown to integrate the judicial exception into a practical application as set forth in the Revised Guidance which references the MPEP §§ 2106.05(a)–(c) and (e)–(h). Inventive Concept Because we determine claim 1 is “directed to” an abstract idea, we consider whether claim 1 recites an “inventive concept” sufficient to “transform” the abstract nature of the claim into a patent-eligible application. The Examiner finds that claim 1 does not recite an inventive concept because Appellant’s disclosure shows that “the additional elements pertain to receiving, selecting and displaying data which are routine and well- understood in healthcare technologies, and using well-known patient monitors and processor to perform[] the claimed functions (See ¶ 32, 47, 66 of Applicant’s Pre-Grant Pub No. 2013/0282405)”. Final Act. 3; see also Ans. 6. We agree. As discussed above, the additional elements recited in claim 1 include the computer components used to carry out the steps of receiving data, displaying data, performing analysis, and viewing different outcomes on a display, which are recited at a high level of generality. See claim 1, stating “wherein the receiving and storing workflow data and patient data, the performing of the comparative analysis, and the selecting Appeal 2020-000314 Application 13/996,586 15 and controlling operations are performed by one or more computers.” Additionally, the written description indicates that these steps are performed by generic computers or computer components. See, e.g., Fig. 2, Spec. 7: 7– 19 (describing generic servers, databases, and computers); Fig. 3, Spec. 12:3–13:20 (describing a non-transient computer readable medium, memory devices for storing the instructions and the databases, a processor, input devices, network devices, and a display for displaying the user interface). We also observe that the additional elements recited in other independent claims are described as generic components. For example, claims 10 and 16 recite data collection and analysis engines, a computer and a non-transitory computer readable medium, a database, and a display device described as generic storage medium including instructions for performing the associated tasks. See Spec. 12:3–13:2 (describing generic computer components performing generic computer functions using generic software instructions). Using generic computer components to perform abstract ideas does not provide the necessary inventive concept. See Alice, 573 U.S. at 223 (“[T]he mere recitation of a generic computer cannot transform a patent- ineligible abstract idea into a patent-eligible invention.”). Thus, these elements, taken individually or together, do not amount to “significantly more” than the abstract ideas themselves. Therefore, the claims have not been shown to be “significantly more” than the abstract idea. Conclusion For at least the above reasons, we agree with the Examiner that claims 1, 10, and 16 are “directed to” an abstract idea and do not recite an “inventive concept.” Accordingly, we sustain the Examiner’s rejection of Appeal 2020-000314 Application 13/996,586 16 claims 1, 10, and 16, as well as the remaining claims which fail to include additional elements that add significantly more to the abstract idea, under 35 U.S.C. § 101. SECTION 103 REJECTION We disagree with Appellant’s arguments, and agree with and adopt the Examiner’s findings and conclusions in (i) the action from which this appeal is taken (Final Act. 4–10) and (ii) the Answer (Ans. 6–12) to the extent they are consistent with our analysis below. Claim 1 Appellant contends that the Examiner erred because “Weidenhaupt does not describe the system or method allowing a user to select one of the previous care steps to display the workflow and patient data that occurred at that time.” Appeal Br. 14–15; see also Reply Br. 5. According to Appellant, the claimed system “enables the user to review any of the past steps performed in a patient care.” Appeal Br. 15. Additionally, Appellant contends Weidenhaupt relates to enforcing compliance without introducing delay, which would not motivate one of ordinary skill in the art “to perform comparative analysis including applying a probability model to a previously performed step.” Id.; Reply Br. 7–8. Appellant further asserts that the cited portions of Weidenhaupt in paragraphs 44 and 46 discuss differential diagnoses, but not a hypothetical path of medical care to be explored or followed. Appeal Br. 16. With respect to Burton, Appellant argues “Burton relies on information from a database” whereas “the present claims recite that hypothetical path data is not stored in a database.” Appeal Br. 19. Appellant has not persuaded us of error. First, the Examiner finds Weidenhaupt teaches “pursuing a hypothetical path” and “viewing . . . a Appeal 2020-000314 Application 13/996,586 17 different possible outcome of the pursued hypothetical path” as the suggested next step in connection with a differential diagnosis. Final Act. 6 (citing Weidenhaupt ¶¶ 44, 47, and 48). As further pointed out by the Examiner, Figure 2 of Weidenhaupt shows “receiving a selection of one of the plurality of care steps previously performed on a patient (Fig. 2 elements 12–14, ¶ 29 “FIG. 2 comprises the log of clinical findings, events, and actions that have taken place.” Ans. 6. Weidenhaupt further describes the differential diagnosis window as a region “for providing a representation of probabilities for one or more differential diagnoses as a function of currently available clinical information” or for listing “possible diagnoses vertically, wherein each diagnosis is identified by its name and a bar having a length representative of a current probability of the corresponding diagnosis.” Weidenhaupt ¶ 31. In fact, contrary to Appellant’s assertion (Reply Br. 6), the probabilities are described as being “conditional probabilities.” See Weidenhaupt ¶¶ 31–32. Similarly, the Examiner finds Weidenhaupt discloses calculating the probabilities for the differential diagnosis based on “the currently available set of evidences (i.e., clinical findings).” Ans. 7 (citing Weidenhaupt ¶ 32). We also agree with the Examiner that Appellant has not clearly identified any recitation in the claim to patentably distinguish the received patient data from the selected data. See Ans. 8. That is, the calculated probabilities for a set of differential diagnoses in Weidenhaupt is based on the patient data that is previously performed on the patient and displayed on the user interface, as illustrated in Figure 2. As further explained by the Examiner, “[l]ogically, any data previously recorded for a patient about care received and that is accessible for the comparative analysis is previous data” Appeal 2020-000314 Application 13/996,586 18 and “a hypothetical path is one based on data or evidence available up to the point the hypothesis is being formulated.” Ans. 9. Furthermore, the probability model applied to calculate those probabilities in Weidenhaupt is identified as a “Bayesian network model,” which is acknowledged by Appellant to be the same model identified in Appellant’s disclosure. Spec. 10:20–28; see also Appeal Br. 14; Ans. 9. We also agree with the Examiner that Appellant’s argument regarding Burton’s information from a database is different from the claimed hypothetical path data not being stored in a database, is not commensurate with the scope of claim 1. Ans. 9–10; see also Reply Br. 7. As further stated by the Examiner, calculating conditional probabilities for an outcome may require storing some parts of the data, which is not precluded by the broadest reasonable interpretation of claim 1. Ans. 10. Lastly, the Examiner correctly relies on Burton as disclosing “certain simulated results not being saved into the database but rather incorporated into the actual model (¶ 34 ‘These real life modifications (as contrasted with simulated modifications) are automatically incorporated into the model through the information gain phase described above’).” Id. Appellant’s arguments challenging the proposed combination of the references are unpersuasive, because they are not directed to the Examiner’s specific findings. The Examiner cites specific portions of each reference for teaching or suggesting the disputed limitation with sufficient details and states a reasonable rationale for combining those teachings. See Final Act. 4–6. Therefore, because the Examiner has correctly mapped the claimed limitations to the specific portions of the applied prior art, we are Appeal 2020-000314 Application 13/996,586 19 unpersuaded that the Examiner has erred in concluding that the combination of Weidenhaupt and Burton renders independent claim 1 obvious. Claims 3 and 11 Appellant argues paragraph 35 of Weidenhaupt relates to “a deviation in time,” and not the recited “deviation from a clinical protocol and/or computer interpretable guidelines.” Appeal Br. 20, 27–28; Reply Br. 10. The Examiner responds by explaining “[o]ne of ordinary skill in the art knows that the timing for performing certain tasks is part of medical protocols such as for performing exams, administering medications etc.” Ans. 10. We agree with the Examiner that the broadest reasonable interpretation of the recited “established clinical protocol and/or computer interpretable guidelines” encompasses timing for performing certain tasks in the workflow. Additionally, we observe that the protocol and time map area 4 in Figure 2 of Weidenhaupt illustrates both the workflow and the timing of each protocol in the displayed workflow. Therefore, we are not persuaded the Examiner erred in rejecting claims 3 and 11 over Weidenhaupt and Burton. Claims 4, 23, and 25 Regarding claim 4, Appellant argues that, in contrast with the recited “evolution of the care steps and the patient data,” Weidenhaupt displays the patient data as a “deterministic” and “actual result,” which “may, or may not, be the most probable result.” Appeal Br. 20. Appellant presents similar arguments for claims 23 and 25. Appeal Br. 29–30, 38; see also Reply Br. 10–11. Appeal 2020-000314 Application 13/996,586 20 We are unpersuaded that the Examiner erred. First, claim 4 does not require displaying the most probable result. Second, as the Examiner reiterates, Weidenhaupt discloses in paragraph 29 that a series of preceding care steps may be selected from the evolution of the steps such that the user can see and review all the care steps and patient data. Ans. 10–11. We also agree with the Examiner that Figure 2 of Weidenhaupt shows displaying different workflow steps that include the preceding steps for review by the user. Therefore, we are not persuaded the Examiner erred in rejecting claims 4, 23, and 25 over Weidenhaupt and Burton. Claims 20, 22, and 24 With respect to claim 22, Appellant argues that “Weidenhaupt paragraph 46 describes a suggested next step window which shows a list of steps suggested by the system,” and not “assessing any previous step, but rather is operating on the current data to determine the next step.” Appeal Br. 21. Appellant further argues that paragraphs 46 and 48 of Weidenhaupt “describe or disclose a system or method performing a comparative analysis to explore alternative medical paths starting from the current state,” and not “apply a probability model to previous steps using patient data at the time the previously performed step was performed.” Id. Appellant presents similar arguments for claims 20 and 24. Appeal Br. 30–31, 37–38; Reply Br. 11–13. We agree with the Examiner that Weidenhaupt discloses performing a comparative analysis of the data to view different possible outcomes. Ans. 11. Paragraph 46 of Weidenhaupt provides two options: (1) suggestions derived from the current state of the guideline execution, (2) best diagnosis Appeal 2020-000314 Application 13/996,586 21 steps to discriminate between multiple differential diagnoses. That is, as explained by the Examiner (Ans. 11–12), the differential diagnosis relies on the analysis of the previous patient data to determine a possible outcome. See Weidenhaupt ¶¶ 46–49. Therefore, we are not persuaded the Examiner erred in rejecting claims 20, 22, and 24 over Weidenhaupt and Burton. Claims 10 and 16 Appellant argues the patentability of independent claims 10 and 16 based on the same reasoning presented for claim 1 above. Appeal Br. 22– 27, 31–36. For the same reasons stated for claim 1, we are not persuaded the Examiner erred in rejecting claims 10 and 16 over Weidenhaupt and Burton. Claim 15 Appellant contends that the combination of Weidenhaupt and Burton does not teach or suggest the claimed “a hypothetical course of care steps, wherein the care steps are not saved” because Burton relies on information stored in a database. See Appeal Br. 28–29; see also Reply Br. 9. Appellant specifically argues that paragraphs 19 and 20 of Burton describe “data from various records is used to generate the modifications to the treatment processes (paragraph [0034]).” Appeal Br. 29. We are unpersuaded of Examiner error. In rejecting claim 15, the Examiner finds that “Burton recites simulated outcomes not being incorporated into a live model (¶ 34 ‘These real life modifications (as contrasted with simulated modifications) are automatically incorporated into the model’) which reads over Applicant’s claimed language of not storing hypothetical paths in a database.” Final Act. 8. That is, Burton was relied on for teaching how real life modifications are incorporated in the model to track the process evolution and “facilitates direct, immediate manipulation Appeal 2020-000314 Application 13/996,586 22 of workflow and outcome variables to reflect the desired, sudden modification.” Burton ¶ 34. Paragraphs 19 and 20 of Burton, cited by Appellant, relate to applying rules to the data based on standardized terminology and vocabulary. However, the workflow modeling disclosed by Burton incorporates such standard terminology to perform “process modeling and ‘what if?’” analysis. See Burton Fig. 2, ¶ 28. Referring to Figure 3, Burton further applies this modeling scheme to specific patient data and workflow data to explore how different adjustments, which are not necessarily saved, to the process may alter the outcome and produce a hypothetical path or simulation. Burton ¶ 33. Burton’s paragraph 34 specifically explains such process variation or adjustment could be based on real life modifications obtained through the information gain phase described in paragraphs 19 and 20. Therefore, we are not persuaded the Examiner erred in rejecting claim 15 over Weidenhaupt and Burton. Claim 26 Appellant contends that Hoyme does not cure the deficiency of the combination of Weidenhaupt and Burton regarding the missing limitation related to “a processor used to search the patient records and the historical patient records for similar characteristics.” See Appeal Br. 38–39. For similar reasons state for claim 1, we are not persuaded the Examiner erred in rejecting claim 26 over Weidenhaupt, Burton, and Hoyme. Remaining Claims Appellant presents no arguments for the remaining claims. Appeal Br. 22, 31; Reply Br. 13–14. For similar reasons stated for the rejection of Appeal 2020-000314 Application 13/996,586 23 claims 1, 10, and 16, we are unpersuaded of Examiner error in rejecting claims 2, 5, 12, 21, and 27. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–5, 10–12, 15, 16, 20– 27 101 Eligibility 1–5, 10–12, 15, 16, 20– 27 1–5, 10–12, 15, 16, 20– 25, 27 103 Weidenhaupt, Burton 1–5, 10–12, 15, 16, 20– 25, 27 26 103 Weidenhaupt, Burton, Hoyme 26 Overall Outcome 1–5, 10–12, 15, 16, 20– 27 FINALITY AND 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 Copy with citationCopy as parenthetical citation