Ex Parte Colwell et al

Patent Trial and Appeal Board

Jun 28, 2016

11728357 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111728,357 03/26/2007 Dave Colwell
23524 7590 06/30/2016
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
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.
090706-0112 9170
EXAMINER
HOLCOMB, MARK
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte DAVE COLWELL, CHRIS FELTON,
PATRICK GREISCHAR, ROSS GREINKE, and
ROBERT HEDGCOCK
Appeal2014-002303
Application 11/728,357
Technology Center 3600
Before ANTON W. PETTING, JOSEPH A. FISCHETTI, and
MICHAEL W. KIM, Administrative Patent Judges.
FISCHETTI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE1
Appellants seek our review under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1-20. We affirm.
1 The Appellants identify EMSystems LLC as the real party in interest.
(Br. 2).
Appeal2014-002303
Application 11/728,357
THE CLAIMED INVENTION
Appellants' claims are generally related to a patient tracking system.
(Spec. 1, 11. 9-10).
Claim 1 is illustrative of the claimed subject matter:
1. A method for tracking patients and providing controlled
access to patient information, the method comprising:
receiving, at a tangible server, patient information
associated with a patient, wherein the patient information
comprises a first information category including patient tracking
information and a second information category including
medical information for the patient, and wherein the patient
tracking information includes an indication of a medical facility
to which the patient is to be transferred;
storing the patient information in a single patient
record file at a database communicatively coupled to the tangible
server such that access to the single patient record file is only
allowed to users having sufficient access privileges;
automatically granting, at the tangible server, access
privileges to the single patient record file to the medical facility
to which the patient is to be transferred in response to receiving;
at the tangible server, the indication of the medical facility to
which the patient is to be transferred;
receiving, at the tangible server, a request from a
user for access to at least one of the first or second information
categories; and
granting, by the tangible server, the request for
access on the basis of the user having sufficient access privileges
to the at least one of the first or second information categories.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Vasic
Wager
Reed
US 2003/0021417 Al
US 2005/007 5904 A 1
US 7,001,334 B2
2
Jan.30,2003
Apr. 7, 2005
Feb.21,2006
Appeal2014-002303
Application 11/728,357
Kinser
McNally
Wyatt
US 2006/0277595 Al Dec. 7, 2006
US 7,890,341 B2 Feb. 15, 2011
US 8,010,386 B2 Aug. 30, 2011
REJECTIONS
The following rejections are before us for review.
The Examiner rejected claims 1--4, 6-8, and 10-16 under 35 U.S.C.
§ 103(a) as unpatentable over Wyatt, Reed, and Vasic.
The Examiner rejected claims 1--4, 6-8, and 10-16 under 35 U.S.C.
§ 103(a) as unpatentable over Wyatt, Reed, Vasic, and McNally.
The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Wyatt, Reed, Vasic, and Wager.
The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Wyatt, Reed, Vasic, McNally, and Wager.
The Examiner rejected claims 9 and 17-20 under 35 U.S.C. § 103(a)
as unpatentable over Wyatt, Reed, Vasic, and Kinser.
The Examiner rejected claims 9 and 17-20 under 35 U.S.C. § 103(a)
as unpatentable over Wyatt, Reed, Vasic, McNally, and Kinser.
FINDINGS OF FACT
We find the following facts by a preponderance of the evidence.
1. Wyatt discloses "a method and a system for effecting transfer of a
patient from the hospital via computer network which allows the
hospital to create a[] transfer request form on-line via a computer
network." (Col. 5, 11. 45--49).
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Application 11/728,357
2. Wyatt discloses "system 400 may include healthcare resources 410,
which may include, for example, a hospital 412 seeking to transfer a
patient with a condition to a healthcare facility 414." (Col. 9, 11. 5-8).
3. Wyatt discloses "hospital 412 may provide transfer information 430 of
the patient to the database 405." (Col. 10, 11. 37-39).
4. Wyatt discloses "database 405 may include the transfer request form
432 which may be accessed on-line by a computer in the hospital 41[2]
via the computer network. Further, the transfer request form 432 may
include patient information and/ or healthcare facility information."
(Col. 10, 11. 53-57).
5. Wyatt discloses "the patient information and/or the healthcare facility
information may be automatically entered into the transfer request form
432." (Col. 11, 11. 4--7).
6. The Specification describes "access privileges" for a file in that "only
authorized users have access for viewing or modifying this
information." (Spec. 5, 11. 19-20).
7. The ordinary and customary meaning of "access" is "[t]he process of
obtaining data from or placing data into a storage device." (IEEE 1000:
THE AUTHORITATIVE DICTIONARY OF IEEE STANDARDS TERMS, Seventh
Edition, Institute of Electrical and Electronics Engineering, Inc, from
http://ieeexplore.ieee.org/stamp/stamp.jsp?tp=&amumber=4116787
(last viewed June 6, 2016)).
8. Wyatt discloses the "transfer information 430 on the database 405
including the transfer request form 432 and/or the status information
434 may be access[ ed] by one or more of the healthcare resources [ 4] 10
via the computer network." (Col. 15, 11. 8-11).
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Application 11/728,357
9. Wyatt further discloses:
The transfer information 430 may include update permissions
436 which may permit one or more of the healthcare resources
410 and/or the CMS agent 420 to modify the transfer request
form 432 and/or the status information 434. The update
permissions 436 may allow, for example, the healthcare facility
414 to modify the healthcare facility information of the transfer
request form 432 of the patient ....
(Col. 15, 11. 24--32).
10. The claim terms "record file" and "file" do not appear in Appellants'
original Disclosure, and the term "record" is not defined or limited in
meaning in the Disclosure.
11. The Specification describes an embodiment where "the personal
information 201, tracking information 202 and the medical information
204 are stored as one record. The distinction is made for clearly
identifying the three different types of information categories contained
in medical record 114 of a patient." (Spec. 10, 11. 17-20).
12. The ordinary and customary meaning of a computer storage "record" is
a "collection of related, often adjacent items of data, treated as a unit."
(Free Dictionary by Farlex, from http://www.thefreedictionary.com/
about (last viewed June 3, 2016)).
ANALYSIS
Claims 1--4, 6-8, and 10-13
The rejection is affirmed as to claim 1. Appellants do not provide a
substantive argument as to the separate patentability of claims 2--4, 6-8, and
10-13 that depend from, and were rejected along with, claim 1, which is the
sole independent claim among those claims. (Br. 27). Therefore, we
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Application 11/728,357
address only claim 1, and claims 2--4, 6-8, and 10-13 fall with claim 1. See
37 C.F.R. § 41.37(c)(l)(iv).
Appellants argue Wyatt grants "update permission" but not "access
privileges" as claimed. (Br. 13-15).
We are not persuaded by Appellants' argument. The term "access" is
not defined by Appellants' Specification. Appellants direct us to page 5,
line 19, through page 6, line 7, in support of the limitation reciting "access"
(Br. 6), which describes that "only authorized users have access for viewing
or modifying this information." (FF 6). Thus, we rely on the ordinary and
customary definition of "access" in a computer context as "obtaining data
from or placing data into a storage device." (FF 7). We find that "update" is
a form of access, because it involves storing data in a file and thus the
process needs to obtain entry/access in order to place the updated data into
the file. Notwithstanding, Wyatt discloses granting access permissions,
because information in the database record "may be accessed." (FF 6).
Appellants next argue Wyatt fails to disclose the automatic granting
of access privileges, because "no 'access privileges' are disclosed and the
process of granting privileges is not discussed in any manner throughout
Wyatt." (Br. 16; see also Br. 15-18).
We are not persuaded, because Wyatt discloses the patient transfer
information record (FF 1-5, 8) includes the access privileges to the transfer-
to facility, which the ordinary artisan would recognize as a granting of those
permissions to the transfer-to healthcare facility 414 automatically with the
creation of the transfer record 430 (FF 9).
We are also not persuaded by Appellants' argument that Wyatt fails to
disclose that the granting of access privileges to the transfer-to healthcare
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Application 11/728,357
facility 414 are in response to receiving the indication of the medical facility
to which the patient is to be transferred, as claimed. (Br. 18-19). Wyatt
discloses the access privileges, for update permission, are in the transfer
information record 430. The ordinary artisan would recognize this granting
of access to healthcare facility 414 as being in response to identifying that
facility in the transfer record 430, because normal medical information
security procedures would prohibit generally providing access to a patient's
record 430 to any entity other than that with a legitimate involvement, such
as originating hospital 412, transfer-to healthcare facility 414, and/or other
appropriate agents, such as the CMS agent 420. (FF 9).
Appellants argue the other references fail to remedy alleged
shortcomings in Wyatt (Br. 19-24), but we find this moot, because we do
not agree that there are relevant shortcomings in Wyatt.
Finally, Appellants argue the cited references fail to disclose "storing
the patient information in a single patient record file at a database," as
claimed, because although Reed discloses storing patient information in a
"data record," Reed does not disclose storing in a "single patient record
file." (Br. 24--27).
We are not persuaded by Appellants' argument. To begin, this is not
an ipsissimis verb is test, i.e., identity of terminology is not required. In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
In construing the claim term "single patient record file," we find the
terms "record file" and "file" do not appear in the original Specification or
claims, and the term "record" is not defined. (FF 10). Appellants direct us
to page 10, lines 17-23 of the Specification for this term (Br. 6), where
information is described as being stored in "one record." (FF 11). We rely
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on the ordinary and customary meaning of a "record," which is "collection
of related, often adjacent items of data, treated as a unit." (FF 12). We thus
construe "single patient record file" as information about a single patient
stored as a retrievable unit, such as in a database record or set of records.
Wyatt discloses a database record at transfer information 430, which
contains transfer and patient information, stored together (FF 9), thus
meeting the claim language. Reed is thus a cumulative disclosure.
Because we affirm the rejection of claims 1--4, 6-8, and 10-16 as
unpatentable over Wyatt, Reed, and Vasic, we do not reach the alternative
rejections additionally relying on McNally.
Claim 5
Appellants do not argue claim 5 separately. (Br. 27). We thus affirm
the rejection of claim 5 under 35 U.S.C. § 103(a) for the same reasons as for
claim 1.
Claims 14--16
For independent claim 14, Appellants essentially repeat the arguments
directed to claim 1. (Br. 27-32). We find them unpersuasive for the same
reasons set forth above at claim 1.
Claims 9 and 17-20
Appellants do not argue claims 9 and 17-20 separately. (Br. 27). We
thus affirm the rejection of claims 9 and 17-20 under 35 U.S.C. § 103(a) for
the same reasons as claim 1.
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Application 11/728,357
CONCLUSIONS OF LAW
The Examiner did not err in rejecting claims 1-20 under 35 U.S.C.
§ 103(a).
DECISION
For the above reasons, the Examiner's rejections of claims 1-20 are
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)(l )(iv).
AFFIRMED
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