Ex Parte Henderson et al

Patent Trial and Appeal Board

Mar 28, 2018

12648343 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/648,343 12/29/2009 Christine Henderson
122546 7590 03/28/2018
FERENCE & ASSOCIATES LLC
409 Broad Street
PITTSBURGH, PA 15143
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.
876.003 3639
EXAMINER
PATEL,NEHA
ART UNIT PAPER NUMBER
3686
MAILDATE DELIVERY MODE
03/28/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTINE HENDERSON, LUCY THOMPSON, and
DAVID T. SHARBAUGH
Appeal 2016-008733
Application 12/648,343
Technology Center 3600
Before THU A. DANG, LARRY J. HUME, and JAMES W. DEJMEK,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1, 2, 5-10, 21, and 23-26, which constitute all
claims pending in the application. Claims 3, 4, 11-20, and 22 were
previously canceled. 2 We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 The real party in interest is Teletracking Technologies, Inc. App. Br. 3.
2 Although the Examiner rejects claim 22 in the Final Rejection (Final
Act. 2), claim 22 was previously canceled and is not pending in the
application.
Appeal2016-008733
Application 12/648,343
STATEMENT OF THE CASE
According to Appellants, the claimed invention relates to "systems
and methods for monitoring patient conditions and history and issuing
notifications based on such monitoring." Spec. i-f 2.
Claim 1, illustrative of the invention and the subject matter of the
appeal, reads as follows:
1. A method comprising:
receiving patient specific data comprising room location of a patient
within a healthcare facility, at least one care provider having contact with the
patient in the room location, and information regarding the condition of the
patient in the room;
storing the patient specific data in a repository, the repository storing
reference data including historical patient information derived from an
electronic medical record;
using a processor to compare patient specific data with the reference
data to detect clinical patterns and to identify an alert situation;
producing one or more alerts when the processor identifies a clinical
pattern using the patient specific information and the reference data
indicating an alert situation;
sending the one or more alerts to an alert repository;
storing the one or more alerts in the alert repository as one or more
historical alerts for inclusion with the reference information;
sending the one or more alerts to a patient screen located in the room
occupied by the patient and accessible to the at least one care provider;
providing a score to at least one alert situation identified;
prioritizing care provider tasks displayed in the patient screen to
dynamically change one or more of a workload and an assignment based on
the score; and
as the at least one care provider enters the room, displaying on the
patient screen located in the room current tasks for the at least one care
provider and patient specific information for the patient in the room.
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Application 12/648,343
The Rejections on Appeal
1. Claims 1, 2, 5-10, 21, and 23-26 stand rejected under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter. Final Act. 2--4.
2. Claims 1, 2, 5-10, 21, and 23-25 stand rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. Final Act. 4--5.
3. Claims 1, 2, 6-10, 21, and 23-25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Collins et al. (US 2006/0049936 Al,
published Mar. 9, 2006) (hereinafter "Collins"); Reisman et al. (US
2009/0216558 Al, published Aug. 27, 2009) (hereinafter "Reisman"); and
Zerhusen et al. (US 2003/0052787 Al, published Mar. 20, 2003) (hereinafter
"Zerhusen"). Final Act. 6-17.
4. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Collins, Reisman, Zerhusen, and Rapaport et al. (US
2006/0161457 Al, published July 20, 2006) (hereinafter "Rapaport"). Final
Act. 17-19.
5. Claim 26 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Zerhusen and Matz (US 2004/0262377 Al, published
Dec. 30, 2004). Final Act. 19-21.
ISSUES
The principal issues before us are whether the Examiner erred in
determining:
1. The claimed method comprising the steps of: "receiving," "storing,"
"using a processor to compare," "producing," "sending," "providing," and
"displaying" various forms of data, and prioritizing tasks based on the data
(claim 1) is directed to patent-ineligible subject matter.
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Application 12/648,343
2. The limitation, "storing the patient specific data in a repository, ...
including historical patient information derived from an electronic medical
record," was not described in the Specification in such a way as to
reasonable convey to one skill in the relevant art that the inventor( s ), at the
time the application was filed, had possession of the claimed invention.
3. The combination of Collins, Reisman, and Zerhusen teaches or
suggests "providing a score to at least one alert situation," "prioritizing care
provider tasks ... based on the score," and "as the at least one care provider
enters the room, displaying on the patient screen ... current tasks for the at
least one care provider and patient specific information for the patient."
App. Br. 24--25.
FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Collins
1. Collins discloses a system for monitoring hospital beds (Abst.),
wherein patient information such as patient's name, whether the patient is a
fall risk, whether the patient is being restrained, and other notes about the
patient or the patient's conditions is displayed. i-f 9. A Call Management
screen is provided that shows the alarm condition for each patient. i-f 69.
Upon detecting an alarm condition, calls are placed from the rooms in which
an alarm condition are detected, prioritized ahead of calls from rooms where
no alarm condition exists. i-f 71. Alarms are designated as having either
high, normal, or low priority, wherein high priority alarms are listed in the
window ahead of those having normal or low priority. Id.
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Application 12/648,343
Reisman
2. Reisman discloses a system for generating real-time health care alerts
that delivers alerts based on comparison of evidence-based standards of care
to information related to the patient's actual care. Abst. Customized alerts
are provided to an individual patient via a personal health record, wherein
the health care organization collects medical care information, aggregates it
in the medical database, establishes a set of clinical rules for a plurality of
conditions. i-f 46. The rules engine module stores an alert indicator in the
patient's medical data file within the medical database, including the
associated alert detail. Id.
The rules engine module generates a real-time risk score for various
medical conditions. i-f 67. The clinician uses a disease management
application/program to calculate the patient's risk score before and after a
disease management interaction with the patient in order to assess progress,
which allows the physical to review the high risk factors in the patients'
health regimen with the patient during an office visit and to identify patients
requiring future disease management sessions. Id. The rules engine module
then generates a plurality of clinical alerts, each corresponding to a specific
alert or recommendation identified by an alert number. i-f 70. When the
health care provider logs into the application, the provider is presented with
a list of patients organized by present condition along with approximate risk
score associated with each patient population group, such as high, moderate
and low risk diabetics, such that the provider can prioritize high risk
patients, determine frequency of follow-up visits, use information to feed the
advanced medical home and identify patients for future disease management
sessions. i-f 78.
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Zerhusen
3. Zerhusen discloses patient point-of-care computer system, wherein
patient data is stored in a memory in a main server coupled to the computer
by a communication network. i-f 5. A personnel locating and tracking
system identifies a nurse when the nurse enters the room of the patient
requiring medication and the system responds by posting a message to the
nurse that is displayed when the nurse is detected, the message includes
delivery information relating to the ordered medication. i-f 171. Once the
nurse picks up the medication, the nurse clears the associated entry on the
nurse's to-do list. Id.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments presented in this appeal. Arguments which Appellants could
have made, but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv)(2015). On the record before us, we are not
persuaded the Examiner has erred. Unless otherwise indicated, we adopt as
our own the findings and reasons set forth in the rejections from which the
appeal is taken and in the Examiner's Answer, and provide the following for
highlighting and emphasis.
Rejection Under 35 US.C. § 101
Appellants argue the Examiner erred in concluding the claims
constitute patent-ineligible subject matter. App. Br. 11-17. 3 In particular,
3 Appellants do not provide substantive arguments for claims 2, 5-10, 21,
and 23-26 separate from those of claim 1 (App. Br. 13-17), and thus, we
choose claim 1 as representative of the group. 37 C.F.R. § 41.37(c)(l)(iv).
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with respect to claim 1, Appellants contend the claims, "properly construed,
are directed to technological improvements to patient at a glance
technology." Id. at 13. According to Appellants, "there is clearly no risk
that the claims will 'tie up' the subject matter of 'organizing human
activities."' Id. Appellants direct our attention to DDR Holdings, which
held "the claimed solution is necessarily rooted in computer technology."
Id. at 13-14, citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1259 (Fed. Cir. 2014). According to Appellants, like DDR Holdings,
Appellants' specific solution "involves novel programming of the
monitoring system to permit a specific alerting technique to be employed."
Id.
Based on the record before us, we are not persuaded of Examiner
error.
Under 35 U.S.C. § 101, the Supreme Court has long interpreted the
statute to include an implicit exception: "[l]aws of nature, natural
phenomena, and abstract ideas" are not patentable. See, e.g., Alice Corp.
Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2354 (2014). The Supreme
Court, in Alice, reiterated the two-step framework previously set forth in
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66,
75-77 (2012), "for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts." Alice, 134 S. Ct. at 2355. The first step is
to "determine whether the claims at issue are directed to one of those patent-
ineligible concepts," such as an abstract idea, as the Examiner concludes in
this case. If the claims are not directed to an abstract idea, the inquiry ends.
Otherwise, the inquiry proceeds to the second step where the elements of the
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claims are considered "individually and 'as an ordered combination'" to
determine whether there are additional elements that "'transform the nature
of the claim' into a patent-eligible application." Alice, 134 S. Ct. at 2355
(quoting Mayo, 566 U.S. at 79, 78).
In the present application, representative claim 1 merely recites the
steps of "receiving," "storing," "using a processor to compare,"
"producing," "sending," "providing," and "displaying" various forms of
data, and prioritizing tasks based on the data. That is, claim 1 is directed to a
method of collecting, analyzing, and displaying various forms of data for a
health care provider to perform tasks (claim 1 ).
In this regard, the claims are similar to the claims that the Federal
Circuit determined are patent-ineligible in 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"); 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). We further refer to Content Extraction, where the
Federal Circuit has provided additional guidance on the issue of statutory
subject matter by holding claims to collecting data, recognizing certain data
within the collected data set, and storing that recognized data in memory
were directed to an abstract idea and therefore unpatentable under § 101.
Content Extraction & Transmission LLC v. Wells Fargo Bank, N.A., 776
F.3d 1343 (Fed. Cir. 2014).
Furthermore, we also agree with the Examiner that prioritizing tasks
for the health care provider is an example of organizing human activities.
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Final Act. 3. The performance of basic human activities that have been
performed for years. See CyberSource Corp. v. Retail Decisions, Inc., 654
F.3d 1366, 1375 (Fed. Cir. 2011) ("That purely mental processes can be
unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.").
On this record, we conclude claim 1 is directed to an abstract idea
under step one of Alice.
As to step two of the analysis under Alice, although Appellants
contend the claims, "properly construed, are directed to technological
improvements to patient at a glance technology" (App. Br. 13) "the relevant
question is whether the claims here do more than simply instruct the
practitioner to implement the abstract idea ... on a generic computer."
Alice, 134 S. Ct. at 2359. In this case, the Examiner concludes, and we
agree, "the method claims recite the abstract idea implemented on a generic
computer" while "the apparatus claims recite generic computer components
configured to implement the same idea." Final Act. 4. That is, the claimed
steps "merely provide conventional computer implementation," wherein
"[ t ]here is no indication that the combination of elements improves the
functioning of a computer or improves any other technology." Ans. 5.
Here, we agree that these limitations are all generic computer
functions (i.e., "receiving," "storing," "using a processor to compare,"
"producing," "sending," "providing," and "displaying" various forms of
data, and prioritizing tasks based on the data) that are well-understood,
routine, and conventional activities previous known to the industry. Alice,
134 S. Ct. at 2359; see also buySAFE, Inc. v. Google, Inc., 765 F.3d 1350,
1355 (Fed. Cir. 2014) ("That a computer receives and sends the information
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over a network-with no further specification-is not even arguably
inventive.").
Although Appellants direct our attention to DDR Holdings, which
held "'the claimed solution is necessarily rooted in computer technology"'
(App. Br. 13-14), DDR Holdings does not support Appellants' arguments.
In DDR Holdings, the Federal Circuit determined that certain claims
satisfied Mayo/Alice step two because "the claimed solution amounts to an
inventive concept for resolving [a] particular Internet-centric problem," i.e.,
a challenge unique to the Internet. DDR Holdings, 773 F.3d at 1257-59; see
Synopsys, Inc. v. Mentor Graphics Corporation, 839 F.3d 1138, 1151 (Fed.
Cir. 2016) (noting that "[i]n DDR Holdings, we held that claims 'directed to
systems and methods of generating a composite web page that combines
certain visual elements of a 'host' website with content of a third-party
merchant' contained the requisite inventive concept"). The Federal Circuit
explained that the patent-eligible claims specified "how interactions with the
Internet are manipulated to yield a desired result ... that overrides the
routine and conventional sequence of events ordinarily triggered by the click
of a hyperlink." DDR Holdings, 773 F.3d at 1258. The court reasoned that
those claims recited a technological solution "necessarily rooted in computer
technology" that addressed a "problem specifically arising in the realm of
computer networks." Id. at 1257.
The claims here do not address a similar problem and do not contain a
similar inventive concept as the patent-eligible claims in DDR Holdings.
Instead, as Appellants concede, the claims are drawn to a concept of "patient
at a glance technology" (App. Br. 13), but, as the Examiner finds, the claims
"merely provide conventional computer implementation," wherein "[t]here
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is no indication that the combination of elements improves the functioning
of a computer or improves any other technology." Ans. 5.
For at least the aforementioned reasons, on this record, we sustain the
patent-ineligible subject matter rejection under 35 U.S.C. § 101 of the
claims.
35 us.c. § 112
The Examiner rejects the claims as failing to comply with the written
description requirement. Final Act. 4--5; Ans. 6-7. However, Appellants
contend "the claim language rejected under§ 112 is fully described at least
at original claim 18." App. Br. 17-18 (also citing Spec. i-f 16).
Upon review of the record, we agree with Appellants. We agree with
Appellants that the Specification, and, in particular, original claim 18, does
have sufficient support for "storing patient specific data in a repository" that
stores "reference data including historical patient information derived from
an electronic medical record," as recited in claim 1. In particular, original
claim 18 recites "an alerting agent that analyzes medical records data and
searches for conditions that meet criteria in the alert repository." Spec. 13.
Further, paragraph 16 of the Specification discloses, for example, "[t]he
alerting agent 500 includes software that analyzes medical records data and
searches for conditions that meet the alert repository criteria," wherein "[t]he
alert repository contains both current alerts and historical alerts." Spec. i-f 16.
Based on the record before us, we reverse the Examiner's rejection of
all of the claims under 35 U.S.C. § 112, first paragraph.
Rejection Under Pre-AJA 35 US.C. § 103(a)
As for claim 1, Appellants contend "the 'score' Applicants' claim is
not a patient population 'risk score' [as set forth in Reisman] but rather
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applies to 'at least one alert situation identified,' where 'a processor [is used]
to compare patient specific data with the reference data to detect clinical
patterns and to identify an alert situation."' App. Br. 18. According to
Appellants, "Reisman is referring to a 'risk score' for 'each patient
population' that is provided '[W]hen the health care provider 110 logs into
an EMR application."' Id. at 19.
Furthermore, although Appellants concede that "Zerhusen teaches that
a task may be displayed on a point of care screen" (id. at 20), Appellants
contend that Zerhusen "in no way" teaches "prioritizing care provider tasks
displayed in the patient screen ... [and] displaying on the patient screen
located in the room current tasks for the at least one care provider and
patient specific information for the patient in the room." Id., repeating
claim 1 (emphases omitted). Additionally, according to Appellants, "the
Office is using impermissible hindsight reasoning" to combine the
references. Id.
We have considered all of Appellants' arguments and evidence
presented. However, we disagree with Appellants' contentions regarding the
Examiner's rejections of the claims. We agree with the Examiner's
conclusion that the claims would have been obvious over the combined
teachings of Collins, Reisman, and Zerhusen.
As an initial matter, we note Appellants' contentions appear to be that
Reisman and Zerhusen fail to teach the claimed invention. App. Br. 19--20.
However, the test for obviousness is not what the references show
individually, but what the combined teachings would have suggested to one
of ordinary skill in the art. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
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Here, although Appellants contend "Reisman is referring to a 'risk
score' for 'each patient population' that is provided '[W]hen the health care
provider 110 logs into an EMR application"' (App. Br. 19), while Zerhusen
"in no way teaches" the contested limitation, we find that the combination of
Collins, Reisman, and Zerhusen teaches or at least suggests the contested
limitation recited in claim 1.
In particular, as the Examiner finds and Appellants concede, Reisman
discloses providing a "risk score" to an alert situation. Final Act.8-9; App.
Br. 18-19; FF 2. Further, the Examiner finds, Reisman also teaches and
suggests prioritizing care provider tasks displayed to dynamically change
workload and assignments. Final Act. 1 O; FF2. Additionally, the Examiner
finds Collins also discloses "sending alerts to care provider as in fig. 18
and 19;" and "prioritizing task and monitor the situation that generated one
or more alerts." Final Act. 8 (emphasis omitted); FF 1. The Examiner also
finds "Zerhusen teaches it is old and well known to communicat[ e] to a
patient screen located in the room occupied by the patient and accessible to
the one or more care provider." Final Act. 11 (emphasis omitted); FF3. We
agree with the Examiner's findings. Accordingly, we find that the
combination of Collins, Reisman and Zerhusen teaches and suggests the
contested limitation.
We are also unpersuaded by Appellants' hindsight contentions (App.
Br. 20). Here, the references are all directed to collecting, maintaining, and
analyzing data relating to patient care. FF 1-3. We find a skilled artisan
would "be able to fit the teachings of multiple patents together like pieces of
a puzzle" since the skilled artisan is "[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex
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Inc., 550 U.S. 398, 420-21 (2007). A rejection is proper as long as it takes
into account only knowledge which was within the level of ordinary skill at
the time the claimed invention was made, and does not include knowledge
gleaned only from the applicant's disclosure. In re McLaughlin, 443 F.2d
1392, 1395(CCPA1971)).
On this record, we find no error with the Examiner's rejections of
claims 1, 2, 6-10, 21, and 23-25 over Collins, Reisman, and Zerhusen; of
claim 5 over Collins, Reisman, and Zerhusen, in further view of Rapaport;
and of claim 26 over Zerhusen, in further view of Matz. See 3 7 C.F .R.
§ 41.37(c)(l)(iv).
DECISION
We affirm the Examiner's rejections of claims 1, 2, 5-10, 21, and 23-
26 under 35 U.S.C. §§ 101 and 103, but reverse the rejection of these claims
under 1, 2, 5-10, 21, and 23-25 under 35 U.S.C. § 112.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See
37 C.F.R. § 41.50(a)(l).
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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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