Ex Parte Korhnak et al

Patent Trial and Appeal Board

Sep 24, 2018

12980751 (P.T.A.B. Sep. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/980,751 12/29/2010
826 7590 09/26/2018
ALSTON & BIRD LLP
BANK OF AMERICA PLAZA
101 SOUTH TRYON STREET, SUITE 4000
CHARLOTTE, NC 28280-4000
FIRST NAMED INVENTOR
Daniel J. Korhnak
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.
063264/395574 5263
EXAMINER
SEREBOFF, NEAL
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
09/26/2018 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):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL J. KORHNAK, RUSS GADAGNO,
ERIC KEPES, CHA YLA WHALEY, and
DOUGLAS J. MOON 1
Appeal2017-003372
Application 12/980,751
Technology Center 3600
Before BRADLEY W. BAUMEISTER, JEREMY J. CURCURI, and
AMBER L. HAGY, Administrative Patent Judges.
BAUMEISTER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1, 2, 4--6, 8-13, 15-20, and 22. App. Br. 4--17. These
claims stand rejected under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter. Final Act. 2-9. We have jurisdiction under
35 U.S.C. § 6(b). 2 We reverse.
1 Appellants identify Omnicell Incorporated as the real party in interest.
Appeal Brief2 (filed August 1, 2016) ("App. Br.").
2 Rather than repeat the Examiner's positions and Appellants' arguments in
their entirety, we refer to the above-mentioned Appeal Brief, as well as the
following documents for their respective details: the Final Action mailed
March 1, 2016 ("Final Act."); the Examiner's Answer mailed October 24,
2016 ("Ans."); and the Reply Brief filed December 22, 2016 ("Reply Br.").
Appeal2017-003372
Application 12/980,751
SUMMARY OF THE DECISION
The claims are directed to an abstract idea that entails using a
computer to determine which of various available operating modes should
be selected for processing medication requests. At issue is whether the
claims recite significantly more than this abstract idea. Resolution of this
issue primarily depends upon claim interpretation.
Appellants argue that the claims reasonably are limited to require that
the inventive automated-mode determination be followed by a mechanical
filling device automatically filling the medication request, thus, rendering
the claims patent-eligible, similar to the claims of Diamond v. Diehr, 450
U.S. 175 (1981). The Examiner, on the other hand, determines that the
claims reasonably may be interpreted more broadly so as to additionally read
on either ( 1) the medication requests subsequently being filled manually by a
human instead of being filled automatically by a mechanical medication
filling device, or (2) not requiring the medication-filling step be performed
at all. Under either of these claim constructions, the claims arguably would
be patent-ineligible, similar to the claims of SmartGene, Inc. v. Advanced
Biological Laboratories, SA, 555 Fed. Appx. 950 (Fed. Cir. 2014). We
disagree with the Examiner and conclude that, under their broadest
reasonable construction, the claims do require that a mechanical device
automatically fill the medication requests, thereby adding significantly more
to the abstract idea.
The Examiner alternatively reasons that, even if the claims do require
the claimed abstract idea be followed by a mechanical machine performing
an automated medication filling step, such an additional step merely would
constitute "a later extra-solution step" that does not affect patent-eligibility.
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We disagree because Appellants' invention improves the technological field
of automated medication-filling devices.
THE INVENTION
Appellants describe the present invention as follows:
Systems, methods, apparatus, and computer program
products are provided for processing medication requests. In one
embodiment, a user may define an operational mode that can be
initiated by one or more triggers. A user may also define one or
more workflows for processing medication requests. The one or
more workflows can be associated with the operational mode. In
response to the occurrence of the appropriate triggers, the
operational mode can automatically, semi-automatically, and/or
manually be initiated. When the operational mode is initiated,
the associated workflows are used for processing medication
requests.
Abstract.
Independent claim 1, reproduced below with added emphasis,
illustrates the claimed invention:
1. A method for processing medication requests, the method
compnsmg:
electronically associating, via one or more processors, a
first operational mode with a first workflow of a plurality of
workflows for automatically processing medication requests,
(a) the first operational mode automatically initiated by the
detection of one or more triggers, (b) each of the plurality of
workflows identifying (i) one or more automated medication
filling devices to be used for filling medication requests in
accordance with the corresponding workflow and (ii) one or
more types of medication requests to be filled in accordance with
the corresponding workflow, and ( c) the one or more triggers
selected from the group consisting of a day of the week, a time
of day, a number of medication requests received over a time
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period, and a frequency of medication requests received over a
time period;
electronically storing, via one or more processors, the first
operational mode in association with the first workflow;
automatically determining, via the one or more processors,
whether one of the one or more triggers of the first operational
mode has occurred;
responsive to determining that one of the one or more
triggers of the first operational mode has occurred, automatically
initiating, via the one or more processors, the first operational
mode and the first workflow for processing medication requests;
identifying, via the one or more processors, (a) the one or
more automated medication filling devices to be used for
automatically filling medication requests in accordance with the
first workflow of the first operational mode and (b) the one or
more types of medication requests to be filled in accordance with
the first workflow of the first operational mode;
electronically receiving, via the one or more processors,
data for a plurality of medication requests;
automatically processing, via the one or more processors,
each of the plurality of medication requests using the one or more
automated medication filling devices to be used for filling
medication requests in accordance with the first workflow of the
first operational mode; and
automatically filling the medication requests of the
plurality of medication requests that are of the one or more types
of medication requests to be filled in accordance with the first
workflow of the first operational mode using the one or more
automated medication filling devices, wherein the filling of the
medication requests of the plurality of medication requests is in
accordance with the first workflow of the first operational mode.
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Application 12/980,751
PRINCIPLES OF LAW
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010)
(precedential).
Regarding the question of patent-eligibility under 35 U.S.C. § 101, a
patent may be obtained for "any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof." The Supreme Court has "long held that this provision contains an
important implicit exception: Laws of nature, natural phenomena, and
abstract ideas are not patentable." Alice Corp. v. CLS Bank Int 'l, 134 S. Ct.
2347, 2354 (2014) (quoting Ass 'nfor Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 589 (2013)). Accordingly, in applying the
§ 101 exception, the Supreme Court cautioned:
[W]e must distinguish between patents that claim the
"'buildin[g] block[ s]"' of human ingenuity and those that
integrate the building blocks into something more, thereby
"transform[ing]" them into a patent-eligible invention. The
former "would risk disproportionately tying up the use of the
underlying" ideas, and are therefore ineligible for patent
protection. The latter pose no comparable risk of pre-emption,
and therefore remain eligible for the monopoly granted under our
patent laws.
Alice, 134 S. Ct. at 2354--55.
In Alice, the Supreme Court set forth an analytical "framework 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 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 71-73 (2012)). In the first step of the
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analysis, we determine whether the claim at issue is "directed to" a judicial
exception, such as an abstract idea. Id. at 2355. If not, the inquiry ends.
Thales Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfzsh,
LLC v. Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claim
is determined to be directed to an abstract idea, then we consider under step
two whether the claim contains an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
In considering whether a claim is directed to an abstract idea under
step one, we acknowledge, as did the Supreme Court, that "all inventions at
some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We therefore look to
whether the claim focuses on a specific means or method that improves the
relevant technology or is instead directed to a result or effect that, itself, is
the abstract idea and merely invokes generic processes and machinery. See
Enfzsh, 822 F.3d at 1336.
In the second step of the Alice analysis, if applicable, we must
consider whether the claim contains an element or a combination of
elements that is sufficient to transform the nature of the claim into a patent-
eligible application. Ultramercial, Inc. v. Hulu LLC, 772 F.3d 709, 714
(Fed. Cir. 2014); Alice, 134 S. Ct. at 2355.
In applying step two of the Alice analysis, we must
"determine whether the claim[] do[ es] significantly more than
simply describe [the] abstract method" and thus transform the
abstract idea into patentable subject matter. We look to see
whether there are any "additional features" in the claim[] that
constitute an "inventive concept," thereby rendering the claim[]
eligible for patenting even if [it is] directed to an abstract idea.
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Those "additional features" must be more than "well-understood,
routine, conventional activity."
Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1328 (Fed.
Cir. 2017) ( citations omitted). A claim that "merely require[ s] generic
computer implementation[] fail[ s] to transform [an] abstract idea into a
patent-eligible invention." Alice, 134 S. Ct. at 2357.
Central to our analysis herein is the fundamental principal that the
Alice framework must be applied to the claims, as properly construed. As
our reviewing court has stated, "The § 101 inquiry must focus on the
language of the Asserted Claims themselves." Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016); see also
Accenture Global Servs., GmbH v. Guidewire Software, Inc., 728 F.3d
1336, 1345 (Fed. Cir. 2013) (admonishing that "the important inquiry for
a § 101 analysis is to look to the claim"); Content Extraction &
Transmission LLC v. Wells Fargo Bank, Nat'! Ass 'n, 776 F.3d 1343,
1346 (Fed. Cir. 2014) (focusing on "whether the claims of the asserted
patents fall within the excluded category of abstract ideas") ( emphasis
added)). These principles are based on long-established jurisprudence
that "[i]t is the claims [that] define the metes and bounds of the
invention entitled to the protection of the patent system." In re
Warmerdam, 33 F .3d 1354, 1360 (Fed. Cir. 1994) ( citing Zenith Lab.
Inc. v. Bristol-Myers Squibb Co., 19 F.3d 1418, 1424 (Fed. Cir. 1994));
see also In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) ("[T]he
name of the game is the claim.").
Our analysis is further guided by case law that, depending on the
proper construction of the claims, is factually analogous: Diamond v. Diehr,
450 U.S. 175 (1981), cited by Appellants in App. Br. 10; and SmartGene,
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Inc. v. Advanced Biological Laboratories, SA, 555 F. App'x. 950 (Fed.
Cir. 2014), cited by the Examiner in Ans. 2.
In Diehr, the claimed invention was directed to "a process for molding
raw, uncured synthetic rubber into cured precision products." 450 U.S.
at 177. More specifically, the claimed process involved a more efficient
curing method that entailed constantly measuring the actual temperature
inside the mold, automatically feeding the measured temperatures into a
computer, repeatedly recalculating the cure time by using the Arrhenius
equation ( a mathematical equation long used for calculating the cure time in
rubber-molding presses), and based on the calculations, automatically
opening the press. Id. at 178-79.
The examiner in Diehr rejected the claims as being directed to patent-
ineligible subject matter because, in the Examiner's view, the claim steps
that were carried out by a computer under control of a stored program
essentially merely entailed performing mathematical calculations, and, as
such, constituted nonstatutory subject matter. Id. at 180. The examiner
further concluded that the remaining steps of installing rubber in the press
and the subsequent closing of the press as "conventional and necessary to
the process and cannot be the basis ofpatentability." Id. at 181.
The majority of the Diehr Court disagreed with the examiner, finding
the claims to be patent-eligible, notwithstanding "the fact that in several
steps of the process a mathematical equation and a programmed digital
computer are used." Id. at 185.
The USPTO interprets the Diehr Court's reasoning as follows:
[W]hen viewing [Diehr's] claim as a whole, the combination of
all [the] steps taken together, including the constant
determination of the temperature of the mold, the repetitive
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calculations and comparisons, and the opening of the press based
on the calculations, amount to significantly more than simply
calculating the mold time using the Arrhenius equation because
they add meaningful limits on use of the equation. The claim
does not merely recite the equation in isolation, but integrates
these ideas into the molding process. The additional steps
specifically relate to the particular variables used, how the
variables are gathered, the process by which the rubber is molded
and cured, and how the result of the cure time calculation is used.
The totality of the steps act in concert to improve another
technical field, specifically the field of precision rubber molding,
by controlling the operation of the mold. In addition, the claimed
steps taken as a combination effect a transformation of the raw,
uncured synthetic rubber into a different state or thing, i.e., a
cured and molded rubber product. Thus, the claim amounts to
significantly more than the mathematical relationship (i.e., the
abstract idea of the Arrhenius equation).
USPTO, 2014 Interim Guidance on Subject Matter Eligibility, July 2015
Update App 'x 1, 17-18, available at
https://www.uspto.gov/sites/default/files/ documents/ieg-july-2015-app 1.pdf)
(explaining the Diehr Court's reasoning in terms of the Alice framework).
In SmartGene, Inc. v. Advanced Biological Laboratories, SA, 555
F. App'x. 950 (Fed. Cir. 2014), the claims were directed to "[a] method for
guiding the selection of a therapeutic treatment regimen for a patient with a
known disease or medical condition." Id. at 951. The representative method
claim entailed the following steps:
(a) providing information patient information to a computing
device ... ;
(b) generating in said computing device a ranked listing of
available therapeutic treatment regimens for said patient; and
( c) generating in said computing device advisory information
for one or more therapeutic treatment regimens in said ranked
listing based on said patient information and said expert rules.
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Id. at 952 (reciting claim 1 ).
Our reviewing court noted in SmartGene that "when a claim involves
an abstract idea ... , eligibility under section 101 requires that the claim
involve 'enough' else-applying the idea in the realm of tangible physical
objects (for product claims) or physical actions (for process claims}--that is
beyond 'well-understood, routine, conventional activity."' Id. at 955 ( citing
Mayo, 132 S. Ct. 1289 at 1294, 1298, 1299). The court determined that
"[t]he claim [at issue] does not do so. It calls on a computer to do nothing
that is even arguably an advance in physical implementations of routine
mental information-comparison and rule-application processes." Id. at 955.
CONTENTIONS AND DETERMINATIONS
Appellants argue that the present claims are distinguishable from the
claims of SmartGene: "[t]he claims in SmartGene are directed to 'the
selection of a therapeutic treatment regimen for a patient with a known
disease or medical condition.' [The present claims], however, are directed
to using automated medication filling devices controlled by operational
modes and workflows to fill medication requests." Reply Br. 2. Appellants
further summarize the claimed invention (App. Br. 12-14), including
reciting the following description of claim 1 's last two limitations:
Claims 1-2, 4-6, 8-13, 15-20, and 22 recite some form of
electronically receiving data for a plurality of medication
requests and automatically processing each of the plurality of
medication requests using the one or more automated medication
filling devices to be used for filling medication requests in
accordance with the first workflow of the first operational mode.
And finally, Claims 1-2, 4-6, 8-13, 15-20, and 22 recite
some form of automatically filling the medication requests of the
plurality of medication requests that are of the one or more types
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of medication requests to be filled in accordance with the first
workflow of the first operational mode using the one or more
automated medication filling devices, wherein the filling of the
medication requests of the plurality of medication requests is in
accordance with the first workflow of the first operational mode.
App. Br. 14.
Appellants argue that the present claims are directed to patent-eligible
subject matter because the claims
(1) include improvements to another technology or technical
field; (5) add a specific limitation other than what is well-
understood, routine and conventional in the field, or add
unconventional steps that confine the claim to a particular useful
application; and ( 6) include meaningful limitations beyond
generally linking the user of an abstract idea to a particular
technological environment.
App. Br. 10-11 (citing the first, fifth, and sixth factors pertaining to patent-
eligibility outlined in the Offices May 2016 Subject Matter Eligibility
Update (issued May 4, 2016)).
Appellants essentially argue the present claims are analogous to the
claims of Diehr instead of the claims of SmartGene: "The specifically
claimed embodiment [ of the present invention] is an automated medication
filling device-which is a specifically configured machine or apparatus and
results in improvements to the corresponding technical field of automated
medication filling devices." App. Br. 12. Appellants continue,
[i]n particular, [the invention] allows automated medication
filling devices to be operated in an automated manner using
operational modes, triggers, and workflows to fill medication
requests. This allows the automated medication filling devices
to adapt to various times, volumes, and needs of pharmacies
without requiring human intervention. This approach also adds
specific limitations other than what is well-understood, routine
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and conventional in the field, or adding unconventional steps that
confine the claim to a particular useful application.
App. Br. 15.
Notwithstanding Appellants' arguments, the Examiner determines that
the claims are directed to patent-ineligible subject matter because, according
to the Examiner, Appellants' Specification indicates that "the filling device
may be a manual operation and so [ the claimed method] is not [ directed to]
an improvement to another technology." Final Act. 4 (citing Spec. ,r,r 26,
27). The Examiner further finds that "[n]one of these [mechanical] filling
devices is claimed" (Final Act. 7), or restated, "[t]he control of the device is
not claimed" (Ans. 2). According to the Examiner, "[t]he claims are
directed toward a 'method for processing medication requests' and not
toward filling those requests." Id. at 4.
The Examiner also sets forth an additional reason for why the claims
are patent-ineligible: "the filling devices as claimed take the output of the
abstract idea and then perform the output in a later extra-solution step."
Final Act. 4.
FINDINGS OF FACT
Appellants' Specification discloses that the invention can be used in
different embodiments in which the medication-filling step is either manual
or automated:
2. Exemplary Medication Filling Devices/Systems
[0025] As shown in FIG. 1, the system may include one or
more medication filling devices 110. A medication filling
device 110 may be a device, apparatus, robot, system, computer,
and/or the like that can be used in filling medication requests.
For example, a medication filling device 110 may be a ROBOT-
Rx® automated medication dispensing system, MedCarousel®
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system, MedShelf system, IntelliShelf-Rx® system,
PROmanager-Rxâ„¢ pharmacy automation system, PACMEDâ„¢
high-speed packager, Satellite Replenishment system, Fulfill-
Rx8M solution, and/or the like. Thus, as will be recognized,
medication filling devices 110 may [be] operated automatically,
semi-automatically, and/or manually and include various
components such as (1) processing elements, (2) memory,
(3) network interfaces, ( 4) transceivers, (5) display devices/input
devices, input and/or (6) various other components.
[0026] By way of example, in one embodiment, a
pharmacist or pharmacy technician may use a MedCarousel®
system or MedShelf system to manually pick medications to fill
medication requests. For example, the MedShelf system may
receive (from the medication server 100) and display medication
requests that are assigned to a particular medication filling
device 110, pharmacist, and/or pharmacy technician for filling.
Using the MedShelf system, the pharmacist or pharmacy
technician can manually fill the medication requests and enter
input via the MedShelf system indicating that the medication
requests have been filled.
[0027] In another embodiment, automated systems may
facilitate the filling of medication requests. For example,
ROBOT-Rx® is a stationary robotic system that automates the
medication storing, dispensing, returning, restocking, and
crediting process by using various technologies. Operatively,
ROBOT-Rx® can receive medication requests from the
medication server 100. At the appropriate time, ROBOT-Rx®
can guide a picking mechanism to select the desired medications
and deposit them in, for example, specific boxes or containers to
fill a particular medication request. In response to ( e.g., after)
filling a medication request, ROBOTRx® can transmit a
message to the medication server 100, for example, indicating
that the medication request has been filled.
Spec. ,r,r 25-27 ( emphasis added).
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ANALYSIS
The present dispute ultimately is one primarily of claim interpretation.
If the claims reasonably are limited to require the automated mode
determination to be followed by the operation of a mechanical automated
medication filling device, then the claims would be more similar to the
claims of Diehr than SmartGene and, therefore, would be patent-eligible.
But if the claims reasonably may be interpreted more broadly so as to
additionally read on the medication requests being filled manually by a
human instead of automatically by a mechanical medication filling device,
then the claims would be more similar to the claims of SmartGene, and,
therefore, would be patent-ineligible. The claims also would be patent-
ineligible if they reasonably may be interpreted as affirmatively reciting only
that a computer perform mode-determination rules, but not affirmatively
reciting the subsequent filling of the medication requests at all.
We find Appellants' claims reasonably to be limited to embodiments
wherein the automated mode determination is followed by a mechanical
automated medication filling device performing the medication-filling step.
To be sure, Appellants' Specification discloses that the invention can be
used in different embodiments in which the medication-filling step is either
manual or automated. See Findings of Fact Section, supra ( citing Spec.
,r,r 25-27). But the claims are narrower than the full scope of the
Application's written disclosure. The scope of claim protection being
sought is expressly limited to only those embodiments in which the
medication requests are filled automatically "using the one or more
automated medication filling devices." Claim 1 ( emphasis added). The
Examiner does not provide a reasonable basis for determining that the claim
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language additionally reads on embodiments in which the requests are filled
manually by a human. See generally Final Act.; see also generally Ans.
Rather, the Examiner's construction ignores express language of the claims.
Furthermore, the Examiner has not sufficiently explained the
Examiner's alternative conclusion that, even if the claims require the recited
automated medication filling step, such a step merely constitutes "a later
extra-solution step" that does not affect patent-eligibility. Final Act. 4. To
be sure, the recited automated medication-filling step, itself in isolation, was
conventional. See Spec. ,r,r 25-27 (indicating that automated medication-
filling devices were known). But in considering whether a claim is directed
to significantly more than an abstract idea, we must consider the claim
elements not only in isolation, but also as an ordered combination.
Ultramercial, 772 F.3d at 714.
The Examiner's position seems to be analogous to saying that Diehr's
act of opening the mold press merely constitutes a later extra-solution step
after the computer performs the abstract idea of calculating the cure time
with the Arrhenius equation. But the Diehr Court rejected that approach as
inconsistent with patent-eligibility jurisprudence.
That respondents' claims involve the transformation of an article,
in this case raw, uncured synthetic rubber, into a different state
or thing cannot be disputed . . . . Our conclusion regarding
respondents' claims is not altered by the fact that in several steps
of the process a mathematical equation and a programmed digital
computer are used.
Diehr, 450 U.S. at 184--85. Similarly here, a characterization of Appellants'
claims consistent with current patent-eligibility jurisprudence is that the
present invention improves the technological field of automated medication-
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filling devices by providing automated determination and control of the
filling devices' operational modes.
CONCLUSION
For the foregoing reasons, Appellants persuade us of error in the
Examiner's construction of claim 1, which, in tum, led to the Examiner's
error in rejecting claim 1 as patent-ineligible under 35 U.S.C. § 101.
Independent claims 9 and 16, respectively directed to a computer program
product and an apparatus, similarly set forth the requirement of
automatically filling medication request using automated medication filling
devices. Accordingly, we do not sustain the rejection of these independent
claims or of claims 2, 4---6, 8, 10-13, 15, 17-20, and 22, which depend from
claims 1, 9, and 16.
DECISION
The Examiner's decision rejecting claims 1, 2, 4---6, 8-13, 15-20,
and 22 is reversed.
REVERSED
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