Ex Parte Allard et al

Patent Trial and Appeal Board

Nov 25, 2014

11968239 (P.T.A.B. Nov. 25, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DAVID JOSEPH ALLARD and JAMES R. KRAEMER
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Appeal 2012-0059111
Application 11/968,2392
Technology Center 3600
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Before HUBERT C. LORIN, JAMES A. WORTH, and
SCOTT C. MOORE, Administrative Patent Judges.

WORTH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–20, all pending claims in the subject application. We
have jurisdiction under 35 U.S.C. §§ 134 and 6(b).
We AFFIRM.

1 Our decision refers to the Appellants’ Appeal Brief (“Br.,” filed July 11,
2011) and the Examiner’s Answer (“Ans.,” mailed Oct. 31, 2011).
2 According to Appellants, the real party in interest is International Business
Machines Corporation of Armonk, New York (Br. 2).
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Introduction
Appellants’ disclosure relates to a method, system, and computer
program product for performing clinical decision analysis in the health care
setting (Spec. ¶¶ 2, 6).
Claims 1, 15, and 18 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal:
1. A computer-implemented method for transmitting
a scheduled appointment to a patient comprising:
receiving input, wherein the input comprises at least one
of current data provided by the patient, prior data provided by
the patient prior to the current data, and known medical history
of the patient;
diagnosing a possible condition of the patient based on
the input, wherein a diagnosis is produced;
scheduling the appointment for the patient based on the
diagnosis, wherein a scheduled appointment is produced; and
transmitting the scheduled appointment to the patient.

Br., Claims App.

Rejections on Appeal
The Examiner maintains, and the Appellants appeal, the following
rejections:
1) Claims 1–3, 4–9, and 15–20 stand rejected under 35 U.S.C.
§103(a) as unpatentable over Zakim (US 7,379,885 B1, iss. May
27, 2008) and Ripperger (US 2004/0199404 A1, pub. Oct. 7,
2004);
2) Claim 10 stands rejected under 35 U.S.C. §103(a) as unpatentable
over Zakim, Ripperger, and Brown (US 2007/0179361 A1, pub.
Aug. 2, 2007);
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3) Claim 11 stands rejected under 35 U.S.C. §103(a) as unpatentable
over Zakim, Ripperger, and Haider (US 2009/0070145 Al, pub.
Mar. 12, 2009); and
4) Claims 12–14 stand rejected under 35 U.S.C. §103(a) as
unpatentable over Zakim, Ripperger, and Green (US 7,716,072 Bl,
iss. May 11, 2010).

ANALYSIS
Independent claim 1 and dependent claims 11–14
We are unpersuaded by Appellants’ argument (Br. 13–15) that Zakim
does not disclose “scheduling the appointment for the patient based on the
diagnosis, wherein a scheduled appointment is produced,” as recited by
claim 1. This argument misconstrues the Examiner’s rejection, as
Appellants cannot show nonobviousness by attacking references
individually, where, as here, the rejections are based on combinations of
references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). The Examiner
correctly finds that Zakim (col. 30, ll. 2–4 and 55–63) describes a system for
determining the manner in which follow-up visits are scheduled (Ans. 18–
19). In particular, Zakim (col. 30, ll. 2–4) describes a system for patient
follow-up, including the scheduling of follow-up visits. In a section titled,
“Specifics for Incorporation of Follow-Up Data into the Database for Each
Patient,” Zakim identifies two categories of information for which the
patient provides information: (1) the diagnosis for the patient’s chief
complaint and any other problems for which observation is important, and
(2) the expectation of responses to the therapy for the problems from which
the patient suffers (col. 30, ll. 53–66). Zakim (col. 32, ll. 5–10) explains that
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the follow-up components of Zakim’s system make it possible to schedule
follow-up visits at the precise times they are needed and to avoid follow-up
visits that will have no value. The Examiner finds it would have been
obvious to combine the teachings of Zakim, i.e., that the patient answers
questions about problems, with the teachings of Ripperger (¶ 20), which
discloses that the physician may enter a diagnosis (Ans. 5–6). As set forth
by the Examiner, Ripperger (¶ 20) also discloses scheduling a visit (Ans. 5).
Thus, there is ample record evidence to support the Examiner’s factual
findings.
We are also unpersuaded by Appellants’ argument (Br. 15, 19–21)
that Zakim does not disclose whether the computer schedules the visit.
The Examiner (Ans. 19) concludes that the performer of the action is not
specified by claim 1. We agree with the Examiner’s conclusion. Claim 1
recites “a computer-implemented method,” but the claim does not limit the
method exclusively to the computer’s own actions. Further, we agree with
the Examiner (Ans. 19) that the above-referenced portions of Zakim are
performed using a computer system, i.e., as an intermediary between the
patient and the physician.
We, therefore, sustain the rejection of claim 1 under 35 U.S.C.
§103(a).
Appellants only argument with respect to claims 11–14, which depend
from claim 1, is that the prior art relied on by the Examiner does not disclose
“scheduling the appointment for the patient based on the diagnosis, wherein
a scheduled appointment is produced,” as recited by independent claim 1.
Having found no deficiency in the rejection of claim 1, we sustain the
rejection of claims 11–14 under 35 U.S.C. §103(a).
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Dependent claim 2
We are unpersuaded by Appellants’ argument ( Br. 15–16) that Zakim
does not disclose “responsive to the diagnosis indicating a possible
emergency condition of the patient, transmitting an emergency alert to the
patient, wherein the emergency alert comprises a recommendation that the
patient seek emergency care,” as recited by claim 2. The Examiner correctly
finds that Zakim (col. 32, ll. 43–50) discloses a system that can “alert” the
patient to seek care (Ans. 7, 19). We are unpersuaded by Appellants’
argument (Br. 16) that this is mere guidance. We note that Zakim (col. 32,
ll. 43–50) describes an alert when an important event in the treatment regime
has been missed, encourages compliance with a treatment regime, and warns
of the consequences of non-compliance. We, therefore, sustain the rejection
of claim 2 under 35 U.S.C. §103(a).

Dependent claim 10
We are unpersuaded by Appellants’ argument (Br. 17–18) that the
prior art relied on by the Examiner fails to disclose “wherein the
appointment is prioritized relative to other patient appointments based on the
diagnosis,” as recited by claim 10. The Examiner correctly finds that Brown
(¶ 242) discloses that “the provider may schedule a priority appointment
with the patient.”
Appellants’ arguments with respect to claim 10 are similar to those
addressed above with respect to claim 1. We are unpersuaded by
Appellants’ argument that Brown does not disclose scheduling the
prioritized appointment is based on the diagnosis. The Examiner’s rejection
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is based on the combination of Zakim, Ripperger, and Brown. One cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on combinations of references. In re Keller, 642
F.2d 413, 425 (CCPA 1981). As set forth above with respect to claim 1,
Zakim and Ripperger teach scheduling the appointment based on the
diagnosis.
We are unpersuaded by Appellants’ argument that the scheduling is
not “automatic.” As with claim 1, from which claim 10 depends, there is no
claim requirement that the computer perform the scheduling acting
independently, even if the computer is transmitting the scheduled
appointment to a patient. The combination relied on by the Examiner uses
the computer as an intermediary between a patient and a physician.
We, therefore, sustain the rejection of claim 10 under 35 U.S.C.
§103(a).

Dependent claims 3–9
Although addressed under different headings, Appellants do not argue
the patentability of claims 3–9 separately from the patentability of claim 1.
We, therefore, sustain the rejection of claims 3–9 under 35 U.S.C. §103(a).

Independent claims 15 and 18 and dependent claims 16, 17, 19, and 20
Appellants do not argue the patentability of independent claims 15
and 18 separately from independent claim 1. Similarly, Appellants do not
argue the patentability of claims 16, 17, 19, and 20, which depend from
claims 15 and 18 respectively, separately from independent claim 1. We,
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therefore, sustain the rejection of independent claims 15 and 18 and
dependent claims 16, 17, 19, and 20 under 35 U.S.C. §103(a).

DECISION
The decision of the Examiner to reject claims 1–20 is affirmed.
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

Ssc