Cornelis Van Zon et al.

Patent Trials and Appeals Board

Aug 3, 2020

13996586 - (D) (P.T.A.B. Aug. 3, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
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.
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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
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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
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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.
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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.”).
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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.”).
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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.)
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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
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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).
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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
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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)
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“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.
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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
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(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
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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
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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
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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”
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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
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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.
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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
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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
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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
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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