Ex Parte Brackett

Patent Trial and Appeal Board

Jul 17, 2018

11684228 (P.T.A.B. Jul. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/684,228 03/09/2007
46169 7590 07/19/2018
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
C. Cameron Brackett
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CRNI.132951 2374
EXAMINER
REYES, REGINALD R
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
07/19/2018 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
BPARKERSON@SHB.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte C. CAMERON BRACKETT
Appeal2017-000664
Application 11/684,228
Technology Center 3600
Before MURRIEL E. CRAWFORD, ANTON W. PETTING, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
PETTING, Administrative Patent Judge
DECISION ON APPEAL
STATEMENT OF THE CASE 1
C. Cameron Brackett (Appellant) seeks review under 35 U.S.C. § 134
of a Final Rejection of claims 21--40, the only claims pending in the
application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellant invented a way of associating the identification of a
patient specimen with a radiology image. Spec. para. 7.
1 Our decision will make reference to the Appellant's Appeal Brief ("Br.,"
filed February 23, 2016) and the Examiner's Answer ("Ans.," mailed August
12, 2016), and Final Action ("Final Act.," mailed March 19, 2015).
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Application 11/684,228
An understanding of the invention can be derived from a reading of
exemplary claim 3 7, which is reproduced below (bracketed matter and some
paragraphing added).
37. Non-transitory computer readable storage media having
computer-executable instructions embodied thereon that, when
executed by a computing device with a processor coupled to a
memory,
perform a computer implemented method for linking a
region of a radiology image with a biological specimen
and a laboratory report,
the method comprising:
[ 1] receiving the radiology image for a patient and an
electronic identification number of the biological specimen, the
biological specimen being a fluid or tissue that is extracted
from the body of a patient;
[2] storing the radiology image in an image database in the
patient's electronic medical record;
[3] creating an electronic order, in the patient's electronic
medical record, for a laboratory test in view of the radiology
image;
and
[ 4] linking
an electronic identification of the region of the radiology
image
with
the electronic identification number of the biological
specimen,
and
linking the electronic identification of the region of the
radiology image
with
the laboratory report of the biological specimen
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and
[5] storing in the patient's electronic medical record,
the region of the radiology image
being smaller than the radiology image
and
the radiology image being stored in a database,
the electronic identification of the region of the radiology
image
comprising one or more coordinates of the region
in the radiology image.
The Examiner relies upon the following prior art:
Wang
Lipscher
US 2003/0007598 Al
US 2007/0192136 Al
Jan.9,2003
Aug. 16, 2007
Claims 21--40 stand rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 21--40 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Wang and Lipscher.
ISSUES
The issues of eligible subject matter tum primarily on whether the
claims recite more than abstract conceptual advice of what a computer is to
provide without implementation details.
The issues of obviousness tum primarily on whether the art describes
some linkage or association between a biological specimen and a region of
an image.
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FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of "link."
Facts Related to Appellant's Disclosure
02. The image received is associated with the patient's electronic
medical record. This may be done by adding a link or reference to the
image in the patient's records. Spec. para. 3 7.
03. The image may be referenced or linked to an electronic medical
record for the patient. Spec. para. 45.
04. If the order is linked to the first image, as described with
reference to FIG. 3B, the accession number of the specimen collected
is associated with the first image. For example, with reference to FIG.
5, the accession number of the specimen collected and the image
identification may be maintained in a database or table. If the order is
linked to more than one region, the accession number of the specimen
collected from the region identified in the image is associated with the
appropriate region. For example, with reference to FIG. 5, accession
number 0001 for a specimen collected for the first mass defined by
region 1 is associated with region 1 and accession number 0002 for
the specimen collected for the second mass defined by region 2 is
associated with region 2. Thus, any report for the specimen accession
number and any associated pathology images are now linked by
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accession number to the appropriate region of the radiology image for
the patient. Spec. para. 46.
05. The association of the radiology image with the specimen
accession number links the radiology image to the laboratory report
for the specimen. Originally filed claims 12 and 20.
Facts Related to the Prior Art
Wang
06. Wang is directed to medical imaging systems and processes.
Wang para. 2.
07. Wang describes the acquisition and display of breast ultrasound
information in a manner that complements traditional x-ray
mammogram-based breast cancer screening methods. Wang para. 2.
08. Wang describes an adjunctive ultrasound display apparatus that
provides an array of thick-slice thumbnail images, each thick-slice
thumbnail image comprising information integrated from a plurality
of adjacent ultrasound slices and representing a thick-slice or slab-like
portion of the breast volume substantially parallel to the standard x-
ray mammogram view. Wang para. 33.
09. Wang describes three-dimensional features being extracted
from a three-dimensional thick-slice volume corresponding to each
thick-slice image. In one preferred embodiment, the three-
dimensional features are determined by (i) determining region-of-
interest (ROI) locations in the thick-slice volume, (ii) segmenting the
borders of candidate lesions at each ROI location, and (iii) extracting
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a set of three-dimensional features for each candidate lesion.
Preferably, the ROI location step takes advantage of the known two-
dimensional ROI locations computed for the thick-slice images, for
example, by using them as starting points in locating the three-
dimensional ROI locations within the thick-slice volume. Wang para.
41.
10. Wang describes a second adjunct display being provided to
form an adjunct display pair, each side corresponding to the nearest
mammogram view being displayed at x-ray viewing station. A bar
code reader reads a bar code of the x-ray mammogram, wherein the
associated adjunctive ultrasound data for that breast is automatically
retrieved from the ultrasound server and displayed on the adjunct
displays. Wang para. 95.
11. Wang describes an adjunct display with a control panel
displaying the thumbnail thick-slice images. The term thumbnail
image is used primarily to denote their information summarizing and
linkage functionalities, and is not to be construed as limiting their
size. Wang para. 128.
12. Wang describes a bar code being assigned to the patient for the
screening session. This is often done in large clinics by handing the
patient a set of bar-coded stickers that are used to identify the patient
in a plurality of tests on that visit such as blood tests, urine tests, etc.
in addition to x-ray mammogram. Wang para. 139.
13. Wang describes an adjunct ultrasound display according to a
preferred embodiment, which may be used alternatively or in
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conjunction with the adjunct ultrasound displays. The adjunct
ultrasound display is designed to interactively and intuitively display
image information relating to a breast ultrasound scan. The
precomputed images are stored, for example, in BMP format on a
F AT32 or NFS file system and are associated by filename, with a first
portion of the filename containing patient and scan data information
and a second portion of the filename identifying the type of ultrasound
image stored. Wang para. 161.
Lipscher
14. Lipscher is directed to facilitating medical order fulfillment.
Lipscher para. 2.
15. Lipscher describes its orders interface selecting a particular
portion of the findings or the findings as a whole to accompany the
order. The findings selection data indicates particular findings that
may accompany the order. For example, the findings selection data
may indicate that current discrete medical findings associated with the
current patient visit may be attached to the order data forwarded to a
service provider. In another example, the findings selection data may
indicate that all of the patient's medical history is to be included with
or attached to the communication of the order data. In a further
example, a healthcare provider may select a subset of the discrete
medical findings associated with the patient to be included with the
order data. The order data may, for example, include an order
identifier and specific information about the order, such as which tests
are to be performed, which methodologies are to be followed, and
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contact information for the patient. For example, a laboratory order
may include an order identifier, such as an identification number,
patient information, such as a contact number or insurance
information, and specific data associated with the order, such as, for
an exemplary blood test, a request for performing a blood glucose
level, an HIAC test, a total cholesterol test, and a triglyceride test. For
an exemplary radiological order, the order data may include an order
identifier, patient contact information, the type of radiological test,
such as X-ray, CAT scan, or MRI, and an anatomical location. In a
particular embodiment, radiological order data may include an
anatomical drawing of a body or a portion of the body with an
indicator of the location of which the healthcare provider desires
1magmg. Lipscher para. 30.
ANALYSIS
Claims 21-40 rejected under 35 USC§ 101 as directed to non-statutory
subject matter
Independent claims 21, 3 6, and 3 7 are all process by product claims,
reciting a process that is driven by instructions on computer readable media.
Hence they are both process and product claims.
Method claim 37 recites receiving and storing a radiology image,
creating an electronic order, and linking an electronic identification of the
region of the radiology image with the electronic identification number of
the biological specimen. Thus, claim 37 recites receiving, storing, and
creating data, and somehow linking an image to data. None of the
limitations recite implementation details for any of these steps, but instead
recite functional results to be achieved by any and all possible means. Data
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reception, analysis and modification, and linking are all generic,
conventional data processing operations to the point they are themselves
concepts awaiting implementation details. The sequence of data reception-
analysis-linking is equally generic and conventional. The ordering of the
steps is therefore ordinary and conventional. The other independent claims
are similar. The remaining claims merely describe various associations and
data interpretations, with no implementation details.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts.
First, ... determine whether the claims at issue are directed to
one of those patent-ineligible concepts. If so, we then ask,
"[ w ]hat else is there in the claims before us?" To answer that
question, ... consider the elements of each claim both
individually and "as an ordered combination" to determine
whether the additional elements "transform the nature of the
claim" into a patent-eligible application. [The Court] described
step two of this analysis as a search for an "'inventive
concept"'-i.e., an element or combination of elements that is
"sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept]
itself."
Alice Corp. Pty. Ltd. v CLS Banklnt'l, 134 S. Ct. 2347, 2355 (2014)
(internal citations omitted) ( quoting Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 72, 73, 78, 79 (2012)).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Examiner determines
the claims directed to "determining the biological specimen collected from
the patient corresponds to the region of the radiology image, based on this
determination, linking the electronic identification of the biological
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specimen with[] the electronic identification of the region, which is a
method of human activity/mathematical relationship/formula." Final Act. 3.
Although the Court in Alice made a determination as to what the
claims are directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
The preamble to claim 37 recites that it is a method for linking a
region of a radiology image with an identification number of a biological
specimen and a laboratory report. The steps in claim 3 7 result in linking a
region of a radiology image with a biological specimen and a laboratory
report. The Specification at paragraph 7 recites that the invention relates to
associating the identification of a patient specimen with a radiology image.
Thus, all this evidence shows that claim 37 is directed to linking an image
with other information, i.e., indexing. This is consistent with the Examiner's
determination.
It follows from prior Supreme Court cases, and Bilski (Bilski v
Kappas, 561 U.S. 593 (2010)) in particular, that the claims at issue here are
directed to an abstract idea. Like the risk hedging in Bilski, the concept of
indexing is a fundamental business practice long prevalent in our system of
commerce. The use of indexing is also a building block of ingenuity in
research. Thus, indexing, like hedging, is an "abstract idea" beyond the
scope of §101. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of indexing at
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issue here. Both are squarely within the realm of "abstract ideas" as the
Court has used that term. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2357.
Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp., LLC. v. Alstom S.A., 830
F.3d 1350, 1353 (Fed. Cir. 2016) (holding that "collecting information,
analyzing it, and displaying certain results of the collection and analysis" are
"a familiar class of claims 'directed to' a patent ineligible concept"); see
also In re TL! Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir.
2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94
(Fed. Cir. 2016). Claim 37, unlike the claims found non-abstract in prior
cases, uses generic computer technology to perform data retrieval, analysis,
and association and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314--15 (Fed. Cir. 2016) (determining claims not abstract
because they "focused on a specific asserted improvement in computer
animation"). As such, claim 37 is directed to the abstract idea of receiving,
analyzing, and associating data.
The remaining claims merely describe various associations and data
interpretations. We conclude that the claims at issue are directed to a patent-
ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea "while adding the words 'apply it"' is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea "'to a particular technological environment."'
Stating an abstract idea while adding the words "apply it with a
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computer" simply combines those two steps, with the same
deficient result. Thus, if a patent's recitation of a computer
amounts to a mere instruction to "implemen[ t ]" an abstract idea
"on ... a computer," that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of "additional
featur[ e ]" that provides any "practical assurance that the
process is more than a drafting effort designed to monopolize
the [ abstract idea] itself."
Alice Corp. Pty. Ltd., 134 S.Ct. at 2358 (citations omitted).
"[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer." Alice Corp. Pty. Ltd., 134 S.Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive, store, and link data amounts to electronic data query
and retrieval----one of the most basic functions of a computer. The limitation
of the region of the radiology image being smaller than the radiology image
and the radiology image being stored in a database, the electronic
identification of the region of the radiology image comprising one or more
coordinates of the region in the radiology image is not a step, but a recitation
of data attributes, which is aspirational rather than functional. All of these
computer functions are well-understood, routine, conventional activities
previously known to the industry. See Elec. Power Grp., LLC v. Alstom
S.A., supra. Also see In re Katz Interactive Call Processing Patent Litig.,
639 F.3d 1303, 1316 (Fed.Cir. 2011) ("Absent a possible narrower
construction of the terms 'processing,' 'receiving,' and 'storing,' ... those
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functions can be achieved by any general purpose computer without special
programming"). In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, "even if a process of collecting and analyzing information is 'limited
to particular content' or a particular 'source,' that limitation does not make
the collection and analysis other than abstract." SAP Am. Inc. v. InvestPic
LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant's method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-linking
is equally generic and conventional or otherwise held to be abstract. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction), Inventor Holdings,
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
( sequence of data retrieval, analysis, modification, generation, display, and
transmission), Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC, 874
F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
Viewed as a whole, Appellant's method claims simply recite the
concept of indexing as performed by a generic computer. To be sure, the
claims recite doing so by advising one to store image data with some other
data linking the image to some specimen. But this is no more than abstract
conceptual advice on the parameters for such indexing and the generic
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computer processes necessary to process those parameters, and do not recite
any particular implementation.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The 16 Yz pages of Specification do
not bulge with disclosure, but only spell out different generic equipment and
parameters that might be applied using this concept and the particular steps
such conventional processing would entail based on the concept of indexing
under different scenarios. They do not describe any particular improvement
in the manner a computer functions. Instead, the claims at issue amount to
nothing significantly more than an instruction to apply the abstract idea of
indexing using some unspecified, generic computer. Under our precedents,
that is not enough to transform an abstract idea into a patent-eligible
invention. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long "warn[ ed] ... against" interpreting § 101 "in
ways that make patent eligibility 'depend simply on the
draftsman's art. '"
Alice Corp. Pty. Ltd., 134 S. Ct. at 2360 (citation omitted).
We are not persuaded by Appellant's argument that the Examiner
failed to present a prima facie case. Br. 8-9. The Examiner determines that:
The claim(s) is/are directed to the abstract idea of determining
the biological specimen collected from the patient corresponds
to the region of the radiology image, based on this
determination, linking the electronic identification of the
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biological specimen withe the electronic identification of the
region, which is a method of human activity/mathematical
relationship/formula. The additional element( s) or combination
of elements in the claim( s) other than the abstract idea per se
amount( s) to no more than: mere instructions to implement the
idea on a computer. Viewed as a whole, these additional claim
element( s) do not provide meaningful limitation( s) to transform
the abstract idea into a patent eligible application of the abstract
idea such that the claim( s) amounts to significantly more than
the abstract idea itself.
Final Act. 3.
Appellant is therefore put on sufficient notice as to the reason for the
rejection. The notice requirement is set forth by 35 U.S.C. § 132.
[T]he PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
"notify[ing] the applicant ... [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application."
35 U.S.C. § 132. That section "is violated when a rejection is
so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection." Chester v.
Miller, 906 F.2d 1574, 1578 (Fed.Cir.1990).
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
We are not persuaded by Appellant's argument that "[u]nder part 1 of
the Alice analysis, the claims are not directed to an abstract idea 'on the face'
of the claims." Br. 11-13. We presented the analysis as to why the claims
are directed to an abstract idea supra. Appellant takes each limitation and
alleges that it is not abstract in a conclusory manner. Each limitation,
however, is a common and generic data processing operation. Again, the
claims recite abstract conceptual advice as to what is to be done with no
technical implementation details as to how to do so. None of the steps are
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medical procedures performed on a patient or anything else physical beyond
computer memory.
Appellant further argues that the asserted claims are akin to the
claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245 (Fed. Cir. 2014). Br. 13-14. In DDR Holdings, the Court
evaluated the eligibility of claims "address[ing] the problem of retaining
website visitors that, if adhering to the routine, conventional functioning
of Internet hyperlink protocol, would be instantly transported away from
a host's website after 'clicking' on an advertisement and activating a
hyperlink." Id. at 1257. There, the Court found that the claims were
patent eligible because they transformed the manner in which a hyperlink
typically functions to resolve a problem that had no "pre-Internet
analog." Id. at 1258. The Court cautioned, however, "that not all claims
purporting to address Internet-centric challenges are eligible for patent."
Id. For example, in DDR Holdings the Court distinguished the patent-
eligible claims at issue from claims found patent-ineligible in
Ultramercial. See id. at 1258-59 (citing Ultramercial, 772 F.3d 7 0 9,
715-16 (Fed. Cir. 2014)). As noted there, the Ultramercial claims were
"directed to a specific method of advertising and content distribution that
was previously unknown and never employed on the Internet before." Id.
at 1258 (quoting Ultramercial, 772 F.3d at 715-16). Nevertheless, those
claims were patent ineligible because they "merely recite[ d] the abstract
idea of 'offering media content in exchange for viewing an advertisement,'
along with 'routine additional steps such as updating an activity log,
requiring a request from the consumer to view the ad, restrictions on public
access, and use of the Internet."' Id.
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Appellant's asserted claims are analogous to claims found ineligible
in Ultramercial and distinct from claims found eligible in DDR Holdings.
The ineligible claims in Ultramercial recited "providing [a] media product
for sale at an Internet website;" "restricting general public access to said
media product;" "receiving from the consumer a request to view [a]
sponsor message;" and "if the sponsor message is an interactive message,
presenting at least one query to the consumer and allowing said consumer
access to said media product after receiving a response to said at least one
query." 772 F.3d at 712. Similarly, Appellant's asserted claims recite
reading, receiving, and linking data. This is precisely the type of Internet
activity found ineligible in Ultramercial.
We are not persuaded by Appellant's argument that "the claims recite
meaningful limitations that transform the abstract idea into a patent eligible
application." Br. 16-17. Appellant contends that the Office's computer "is
not capable of performing these functions. Rather, the recited processors
must be programmed to perform the specific functions of the claims, making
the computer a special-purpose computer that is programmed in a special
way." Id. This contention would have some pertinence if the claims recited
how the recited operations were actually performed. Appellant is arguing
only that the specification for any program is eligible for patent protection
as, after programming, it turns the computer into a special purpose
computer. But simply specifying what the computer is to do using generic
computer operations is insufficient. See Elec. Power Grp., LLC v. Alstom
S.A, supra.
We are not persuaded by Appellant's argument that the claims pose
no risk of preempting an abstract idea, itself. Br. 1 7-18. Although
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preemption may be the concern driving the exclusion of abstract ideas from
patent-eligible subject matter, preemption is not the test for eligibility. "The
Supreme Court has made clear that the principle of preemption is the basis
for the judicial exceptions to patentability" and "[ f]or this reason, questions
on preemption are inherent in and resolved by the§ 101 analysis." Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice, 134 S. Ct. at 2354).
Claims 21-40 rejected under 35 USC§ 103(a) as unpatentable over Wang
and Lipscher
As a matter of claim construction, we first find that the claims do not
recite any particular implementation for the recited identifications, and in
particular do not recite that the identifications uniquely identify their targets.
We also find that the claims do not recite any particular implementation for
the recited linkings, but that the Specification describes using a link or
reference for the linking and that the linking is some manner of associating.
We are not persuaded by Appellant's argument that "Lipscher does
not teach 'based on this determination, linking the electronic identification
of the biological specimen with the electronic identification of the region of
the radiology image; storing the linkage of the biological specimen and
communicating the linked biological specimen."' Br. 19. The Examiner
finds that Wang describes an identifier for a biological specimen
exemplified on stickers attached to blood or urine tests. These stickers may
be scanned, and thus the identifier is electronic in the database the scan
compares to. Final Act. 4. Wang also discusses electronic links, albeit
between thumbnail images and the actual image related to the thumbnail.
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The claims do not recite any particular implementation for performing the
linking, but only suggest using some number such as an accession number.
The Examiner finds that Lipscher describes using an order number to
associate (link) an order for images and biological specimens in the same
order. The Examiner also finds that Lipscher describes including an
anatomical drawing of a body or a portion of the body with an indicator of
the location of which the healthcare provider desires imaging in the same
order. Final Act. 5---6. Thus the order number associates (links) a biological
specimen with the region of the radiology image and is thus an electronic
identifier for each. Wang describes associating a smaller two dimensional
region of an anatomical image with a larger three dimensional one and
linking the two with the patient bar code.
CONCLUSIONS OF LAW
The rejection of claims 21--40 under 35 U.S.C. § 101 as directed to
non-statutory subject matter is proper.
The rejection of claims 21--40 under 35 U.S.C. § 103(a) as
unpatentable over Wang and Lipscher is proper.
DECISION
The rejection of claims 21--40 is affirmed.
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Appeal2017-000664
Application 11/684,228
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.I36(a)(l)(iv) (2011).
AFFIRMED
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