Ex Parte Campbell et al

Patent Trial and Appeal Board

Sep 13, 2017

13645120 (P.T.A.B. Sep. 13, 2017)

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.
13/645,120 10/04/2012 Edward Robert Campbell 029184-0001P 9439
34284 7590
Rutan & Tucker, LLP
611 ANTON BLVD
SUITE 1400
COSTA MESA, CA 92626
09/15/2017 EXAMINER
WINSTON III, EDWARD B
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
09/15/2017 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):
patents @ rutan. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD ROBERT CAMPBELL and ERIAN S.
TOULEGENOV
Appeal 2016-006951
Application 13/645,120
Technology Center 3600
Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and
JOHN P. PINKERTON Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1 through 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-006951
Application 13/645,120
INVENTION
Appellants’ disclosed invention is directed to a system for presenting
webpages that convey a medical provider’s knowledge base. The website is
searchable for specific medical procedures and the specific diseases treated.
See Abstract and page 6 of Appellants’ Specification. Claim 1 is
representative of the invention and reproduced below.
1. An apparatus for a medical website, comprising:
a website consisting of one or more web pages hosted on
a server configured to convey a medical provider's knowledge
base and interaction website;
where the website is configured to maintain and display
information regarding a plurality of medical providers in one or
more databases and a user of the website may search the
knowledge base regarding the plurality of medical providers
through a user interface and a search routine that takes the user's
query to search the databases;
a counter configured to keep track of one or more of
1) a total number of specific medical procedures
done by a first medical provider in the plurality of medical
providers,
2) a number of specific medical procedures done by
the first medical provider per set period of time,
3) a total number of specific diseases treated by the
first medical provider,
4) a number of specific diseases the first medical
provider has treated per set period of time, and then the
counter is configured to communicate with the databases
to store the tracked information in the one or more
databases; and
where the specific medical procedures and the specific
diseases treated are searchable criteria in the search routine
implemented on the website as well as displayed information on
one or more web pages regarding each medical provider in the
plurality of medical providers, where the website and its
functionality are implemented with one or more selected from
the group consisting of i) coded software, ii) hardware circuits,
and iii) a combination of coded software and hardware circuits,
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and where any portions of the website and its functionality
implemented in coded software are stored in a non-transitory
computer readable medium in a format executable by one or
more processing components.
REJECTIONS AT ISSUE1
The Examiner has rejected claims 3,7, and 16 under 35U.S.C. § 112
second paragraph as being indefinite. Final Action 2.
The Examiner has rejected claims 1 through 20 under 35 U.S.C. § 101
for being directed to non-statutory subject matter. Final Action 3.
The Examiner has rejected claims 1 and 10 through 15 under
35 U.S.C. § 103 for being unpatentable over Soon-Shiong (US
2008/0183497 Al, published July 31, 2008) and Zides (US 2010/0235295
A1, published Sept. 16,2010). Final Action 4—12.
The Examiner has rejected claim 2 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, and Cook (US 2006/0080146 Al,
published Apr. 13, 2006). Final Action 12—14.
The Examiner has rejected claims 4, 5, and 17 under 35 U.S.C. § 103
for being unpatentable over Soon-Shiong, Zides, and Hampton (US
2013/0218717 Al, published Aug. 22, 2013). Final Action 14—17.
The Examiner has rejected claim 6 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, and Royall (US 7,451,094 B2, issued
Nov. 11, 2008). Final Action 17—19.
The Examiner has rejected claims 3 and 7 under 35 U.S.C. § 103 for
being unpatentable over Soon-Shiong, Zides, Gremett (US 8,170,958 Bl,
1 Throughout this Decision we refer to the Appeal Brief filed October 16,
2015, Reply Brief filed July 1, 2016, Final Office Action mailed March 3,
2015, and the Examiner’s Answer mailed May 5, 2016.
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issued May 1, 2012), Ryder (US 2010/0088182 Al, published Apr. 8, 2010),
and Rugh (US 2006/0287997 Al, published Dec. 21, 2006). Final Action
19-21.
The Examiner has rejected claim 8 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, and Dodson (US 8,046,241 Bl,
issued Oct. 25, 2011). Final Action 21—23.
The Examiner has rejected claims 9 and 20 under 35 U.S.C. § 103 for
being unpatentable over Soon-Shiong, Zides, and Psota (US 2009/0144070
Al, published June 4, 2009). Final Action 23—26.
The Examiner has rejected claim 16 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, Gremett, Ryder, Rugh, and Cook.
Final Action 27—29.
The Examiner has rejected claim 18 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, Hampton, and Royall. Final Action
30-32.
The Examiner has rejected claim 19 under 35 U.S.C. § 103 for being
unpatentable over Soon-Shiong, Zides, Hampton, Kosman (US
2005/018086), and Vining (US 2006/0172708). Final Action 32- 33.
REJECTION UNDER 35 U.S.C. § 112
Appellants argue the Examiner’s rejection under 35 U.S.C. § 112
second paragraph is in error. Appellants argue that the term “negative
comment” is sufficiently definite as when it is interpreted in light of the
Specification the term is understood as an unfavorable review associated
with low scores. App. Br. 12—16, and Reply Br. 6—15. Specifically,
Appellants point to paragraphs 28, 39, 41, 59 and Figures 4, 5a, and 12,
which discuss an entry field for comments, grades assigned to medical
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providers and a questionnaire provided. App. Br. 14-15, Reply Br 10-15.
Further, Appellants provide several definitions of negative and assert the
claim term is definite. Reply Br. 6-10.
We are persuaded of error by Appellants’ arguments. Initially, we
note representative claim 3 recites the analyzing routine as detecting 1)
negative comments and 2) low scores, thus identifying that a “negative
comment” is separate from a low score. The grades shown in Figure 5a are
low scores and not negative comments. However, paragraph 98 of
Appellants’ Specification identifies a series of questions directed to a
patient’s visit, and question 16 recites “how would you describe your
experience during this visit. A) positive; B) neutral; C) negative[.]” Thus,
while the term is subjective, as found by the Examiner, Appellants’
Specification provides objective mechanism to determine if a comment is
negative. Accordingly, we do not sustain the Examiner’s rejection of claims
3, 7, and 16.
REJECTION UNDER 35 U.S.C. § 101
PRINCIPLES OF LAW
Patent-eligible subject matter is defined in § 101 of the Patent Act,
which recites:
Whoever 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.
There are, however, three judicially created exceptions to the broad
categories of patent-eligible subject matter in § 101: laws of nature, natural
phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CIS Banklnt’l, 134
S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
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Inc., 132 S. Ct. 1289, 1293 (2012). Although an abstract idea, itself, is
patent-ineligible, an application of the abstract idea may be patent-eligible.
Alice, 134 S. Ct. at 2355. Thus, we must 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.” Id. (citing Mayo, 132 S. Ct. at 1297—98). The
claim must contain elements or a combination of elements that are
‘“sufficient to ensure that the patent in practice amounts to significantly
more than a patent upon the [abstract idea] itself.’” Id. (citing Mayo, 132 S.
Ct. at 1294).
The Supreme Court sets forth a two-part “framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts.” Id. at 2355.
First, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. [Mayo,] 132 S.Ct., at
1296—1297. If so, we then ask, “[w]hat else is there in the claims
before us?” Id., at------- , 132 S.Ct., at 1297. To answer that
question, we 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. Id., at------- , 132 S.Ct.,
at 1298, 1297. We have 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.” Id., at------- , 132 S.Ct., at
1294.
Id.
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ANALYSIS
We have reviewed Appellants’ arguments in the Briefs, the
Examiner’s rejections, and the Examiner’s response to Appellants’
arguments. Appellants’ arguments have not persuaded us of error in the
Examiner’s determination that the claims are unpatentable.
Appellants argue on pages 16 through 53 of the Brief, that the claims
are not directed to an abstract idea. Further, on pages 53 through 55 of the
Brief, Appellants argue the claims recites significantly more than the
abstract idea. Specifically, Appellants argue:
Appellants respectfully submit that the Office Action merely
asserts "Claim(s) 1-20 is/are directed to the abstract idea of
organizing human activity by maintaining and presenting tracked
information regarding a plurality of medical providers," but does
not provide a comparison between the Applicant's concept as
defined by its actual claim limitations on posting web pages and
then specific hardware such as a counter and software routines to
search the knowledge base on specific criteria important to the
potential patient and to the limitations in any case that have been
found by the courts to be abstract ideas to show the similarity
required by the US PTO guidelines.
App. Br. 21 (emphasis omitted). Further, Appellants argue:
First, Appellants' concept is not any of the abstract examples:
creating a contractual relationship (buySAFE), hedging (Bilski),
mitigating settlement risk (Alice Corp.), processing loan
information (Dealertrack), managing an insurance policy
(Bancorp), managing a game of Bingo (Planet Bingo), allowing
players to purchase additional objects during a game (Gametek),
or generating rule-based tasks for processing an insurance claim
(Accenture). Second, Appellants' concept is not any of the
abstract examples: tax-free investing (Fort Properties) or
arbitration (In re Comiskey). Third, Appellants' concept is not
any of the abstract examples: advertising as an exchange or
currency (Ultramercial), structuring a sales force or marketing
company (In re Ferguson), using an algorithm for determining
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the optimal number of visits by a business representative to a
client (In re Maucorps), allowing players to purchase additional
objects during a game (Gametek), and computing a price for the
sale of a fixed income asset and generating a financial analysis
output (Freddie Mac). Fourth, Appellants' concept is not any of
the abstract examples: a mental process that a neurologist should
follow when testing a patient for nervous system malfunctions
(In re Meyer), and meal planning (DietGoal).
App. Br. 23—24 (emphasis omitted).
These arguments have not persuaded us the Examiner erred in
determining representative claim 1 recites an abstract idea. The Examiner
states “the abstract idea of searching a database comprising information
regarding a plurality of medical providers using specific medical procedures
and specific diseases treated as search criteria, which is interpreted as the
abstract idea of comparing new and stored information using rules to
identify options” and that the claims do not recite additional elements that
amount to significantly more than the abstract idea. Answer 37. We concur.
The Federal Circuit has explained that, in determining whether claims
are patent-eligible under Section 101, “the decisional mechanism courts now
apply is to examine earlier cases in which a similar or parallel descriptive
nature can be seen—what prior cases were about, and which way they were
decided.” Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
1294 (Fed. Cir. 2016). The Federal Circuit also noted in that decision that
“examiners are to continue to determine if the claim recites (i.e., sets forth or
describes) a concept that is similar to concepts previously found abstract by
the courts.” Amdocs, 841 F.3d at 1294 n.2 (citation omitted).
In the instant case, representative claim 1 recites a) a website to
convey a medical provider’s knowledge base, b) the website displaying
information concerning providers in a database which allows the searches of
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the knowledge base; c) a counter to keep track of one or more pieces of data
concerning a medical provider d) a database structure to store the counted
data and e) wherein the website allows search of the database. Thus, the
claim is directed to the abstract concept of having a knowledge base,
distributing collected data, and allowing it to be searched, which is similar to
the claims at issue in SmartGene Inc. v Advanced Biological Laboratories
555 Fed. Appx 950, 954 (Fed. Cir. 2014 (non precedential, holding that a
method for guiding selection of a therapeutic treatment using knowledge
bases, generating ranked lists of treatment routines and generating advisory
information for treatment “does no more than call on a ‘computing device’
with basic functionality for comparing stored and input data and rules, to do
what doctors do routinely”)). The claims are also similar to those considered
by the court in Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016) (holding that claims directed to a process of gathering and
analyzing information of a specific content are directed to an abstract idea).
They are also similar to those at issue in Content Extraction and
Transmission LLC. v. Wells Fargo Bank Nat 7 Ass ’n, 776 F.3d 1343, 1347
(Fed. Cir. 2014) (holding that the claims were “drawn to the abstract idea of
1) collecting data, 2) recognizing certain data within the collected data set,
and 3) storing that recognized data in memory.”). Thus, we concur with the
Examiner that the claims are directed to the use of an abstract idea.
With respect to the second part of the Alice analysis, Appellants argue
the “claims recite multiple structures that are not generic to every computer
and perform novel functions” Answer 25.
Further, Appellants assert that the claim is drawn to significantly more
than the abstract idea as it is rooted in computer technology and provides
“objective verified information using computer technology to be displayed
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to a potential patient/user of the medical server so that they can make an
informed decision.” App. Br. 54—55, see also Reply Br. 16—18.
We are not persuaded of error in the Examiner’s rejection by these
arguments. As the Examiner states, the additional limitations are directed to
generic computer functions. Answer 37—38 (citing para. 117 of Appellants’
Specification to show generic computer functions. We concur and are not
persuaded of error by Appellants’ arguments.
Further, we note that contrary to Appellants’ arguments discussed
above, the recitation of a counter is not hardware, but as discussed in
Appellants’ Specification paragraph 63 is a (software) routine. Additionally,
Appellants’ Specification, in paragraphs 117 and 120, discusses
implementing the invention using generic and well known computing
devices.
“[T]he use of generic computer elements like a microprocessor or
user interface do not alone transform an otherwise abstract idea into patent-
eligible subject matter.” FairWarningIP v. latric Sys. Inc., 839 F.3d 1089,
1096 (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256
(Fed. Cir. 2014)). See also Alice Corp. We disagree with Appellants that
the claim is rooted in computer technology as the disclosed invention merely
uses the webpage and server to provide access to information. We are not
persuaded that the claims are drawn to an inventive concept because the
invention provides “objective verified information using computer
technology to be displayed to a potential patient/user of the medical server
so that they can make an informed decision.” App. Br. 54—55. This is
merely using the computer technology as a means of disseminating
information. Thus, Appellants’ arguments have not persuaded us that
representative claim 1 recites significantly more than the abstract idea and,
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therefore, we sustain the Examiner’s 35 U.S.C. § 101 rejection of claim 1
and claims 2 through 20 grouped with claim 1.
REJECTIONS UNDER 35 U.S.C. § 103
Rejection of claims 1 and 10 through 15 based upon Soon-Shiong and Zides
Appellants argue on pages 55 through 66 of the Appeal Brief, and 24—
25 of the Reply Brief, that the rejection of these claims is in error.
Appellants assert that “[t]he prior art does not present[] obtaining objectively
verifiable data. Instead, the claims of the instant Application expressly
include claim language that require an objective piece of technology, a
counter, to track the amount of procedures performed.” App. Br. 55.
We are not persuaded of error by these arguments. Representative
claim 1 does not recite a limitation to verifiable data, merely that a counter is
used. We are not persuaded by Appellants’ arguments that the combination
of Soon-Shiong and Zides does not teach the claimed counter. While Soon-
Shiong does not teach a counter, the Examiner relies upon Zides to analyze
success rates for the health care provider using different metrics. Answer
40. We concur. Zides does not use the term counter; however, we find the
skilled artisan would recognize that a count is used in Zides’ system.
Specifically, as Appellants identify in their arguments on page 60 of the
Brief, the success rate is a number of successful treatments out of a number
of people being treated. Thus, to calculate a success rate a count of the
number of people is required. That Zides displays a success rate and not a
count is irrelevant as the claim does not recite what data is displayed.
Further, we note that Zides states, in paragraph 84, “[i]n one
implementation, the system will identify all of the healthcare providers who
were used by more than a threshold number of users,” which provides
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further evidence that a count of people being treated is used. Thus,
Appellants’ arguments have not persuaded us of error in the Examiner’s
rejection of representative claim 1, and claims 10 through 14 grouped with
claim 1.
Appellants argue the rejection of claim 15 is in error for the same
reasons as claim 1. App. Br. 66 and 67. Thus, we sustain the Examiner’s
rejection of claim 15.
Rejection of claim 2 based upon Soon-Shiong, Zides, and Cook
Appellants argue that the rejection of claim 2 is in error for the same
reasons as claim 1. App. Br. 70. We note that in the Reply Brief,
Appellants present arguments directed to claim 2. Reply Brief 28—29.
Appellants have not shown good cause as to why these arguments could not
be presented earlier. As such, these arguments have not been considered,
and are waived. See Ex parte Borden, 93 USPQ2d 1473, 1476 (BPAI 2010)
(informative) (absent a showing of good cause, the Board is not required to
address arguments in Reply Brief that could have been presented in the
principal Appeal Brief); 37 C.F.R. § 41.41(b)(2). Thus, we sustain the
Examiner’s rejection of claim 2 for the reasons discussed above with respect
to claim 1.
Rejection of claims 4, 5, and 17 based upon Soon-Shiong, Zides and
Hampton
Appellants argue the Examiner’s rejection of claim 4 is in error as the
combination of Soon-Shiong, Zides, and Hampton does not teach providing
accumulated patient reviews from patients through a verification mechanism
as recited in claim 4. App. Br. 67—69. Specifically, Appellants assert that
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Hampton, which the Examiner relies upon to teach this limitation, merely
teaches a verification that a person, and not a robot, is generating the review.
Thus, the reference does not teach verification that the person making the
review is actually the person who used the product (or as claimed received
the service). App. Br. 68.
The Examiner finds Hampton teaches preventing non-customers from
providing a rating. Answer 17, 41 (citing Hampton para. 138).
We concur with Appellants and disagree with the Examiner. We do
not find sufficient evidence to show that Hampton teaches the review from
patients who through a verification mechanism have been seen and serviced
by the medical provider, as recited in claim 4. As discussed by Appellants,
the verification of Hampton is just to confirm there is a human and not a
robot completing the survey and there is no verification that the human
received the service. Thus, we do not sustain the Examiner’s rejection of
claim 4, claim 5, which depends thereupon, and claim 17 with recites a
similar limitation and is similarly rejected.
However, we note that Zides in para. 87, discusses a verification
system to prevent entry of falsified information by a rogue user. The record
does not show the Examiner considered this teaching of Zides. Therefore,
should there be further prosecution of the application, we leave it to the
Examiner to determine the appropriateness of a new ground of rejection.
Rejection of claim 6 based upon Soon-Shiong, Zides, and Rovall
Appellants argue the Examiner’s rejection of claim 6 is in error as the
combination of Soon-Shiong, Zides, and Royall does not teach patients enter
their randomly assigned code, which is used to verify the patient entering the
review is actually a patient of the medical provider. App. Br. 71—72.
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The Examiner finds that Royall teaches emailing each candidate
(patient) a unique user name and password for electronically accessing a
survey form, which meets the claim. Answer 20, 42 citing Royall Col. 9,11.
40-48, and Col. 9,11. 16-20.
We disagree with the Examiner. Initially, we note that claim 6
depends upon claim 4 and thus includes the limitations of claim 4 discussed
above. We also note that Hampton, which is used in the rejection of claim 4,
is not applied in the rejection of claim 6. Finally, we note that the Examiner
has not shown that Royall teaches the limitations of claim 4. Thus, on its
face, the Examiner has not shown that the combination of Soon-Shiong,
Zides, and Royall teaches all of the limitations of claim 6. Accordingly, we
do not sustain the Examiner’s rejection of claim 6.
However, as noted above, Zides in para. 87, discusses a verification
system to prevent entry of falsified information by a rogue user which may
be relevant to claim 4. The record does not show the Examiner considered
this teaching of Zides. Therefore, should there be further prosecution of the
application, we leave it to the Examiner to determine the appropriateness of
a new ground of rejection for claim 6.
Rejection of claims 3 and 7 based upon Soon-Shiong, Zides, Gremett
Ryder, and Rugh.
Appellants argue the Examiner’s rejection of claim 3 is in error as the
combination of the references does not teach the claim 3 recitation of the
content analyzing routine detecting negative comments. App. Br. 73—75.
Specifically, Appellants argue that Ryder teaches that the moderator, a
person, not a content analyzing routine as claimed, must review the
comments to find a negative review. App. Br. 74. Further, Appellants argue
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that Rugh teaches that feedback (reviews) can be left for both positive and
negative comments and does not teach the claimed content analyzing
routine. Id. Finally, Appellants argue Gremett does not disclose
distinguishing between negative and positive ratings.
We are not persuaded of error by these arguments. The Examiner
finds that Ryder teaches a moderator may review for objectionable content
(negative reviews) and censor reviews and also that this may be automated
by a filter. Answer 42 (citing Ryder para. 29). We concur with the
Examiner and find that Ryder teaches the filter (a routine) that reviews
comments to determine objectionable content (which encompasses negative
reviews). Thus, Appellants’ arguments have not persuaded us of error in the
Examiner’s rejection of claims 3 and 7.
Rejections of Claims 8, 9, 16, 18, 19, and 20
Appellants argue that the Examiner’s rejection of these claims is in
error for the reasons discussed with respect to the obviousness rejection of
claims 1 and 15. App. Br. 75—76. As discussed above, Appellants have not
persuaded us of error in the obviousness rejection of claims 1 and 15.
Accordingly, we sustain the Examiner’s obviousness rejections of claims 8,
9, 16, 18, 19, and 20.
DECISION
We affirm the Examiner’s rejection of claims 1 through 20 under
35U.S.C. § 101.
We affirm the Examiner’s rejections of claims 1, 2, 3, 7 through 16,
and 18—20 under 35 U.S.C. § 103.
We reverse the Examiner’s rejections of claims 4, 5, 6, and 17 under
35 U.S.C. § 103.
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We reverse the Examiner’s rejection of claims 3, 7, and 16 under
35 U.S.C. § 112, second paragraph.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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