Ex Parte NOLTE et al

Patent Trials and Appeals Board

Feb 28, 2019

13236343 - (D) (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/236,343 09/19/2011
46169 7590 03/04/2019
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
MARK ALLEN NOLTE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
CRNI.160906 9302
EXAMINER
KANAAN, MAROUN P
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
03/04/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
BPARKERSON@SHB.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK ALLEN NOL TE, RAJNEESH MEHRA,
BRICE MCIVER, TERNG LIM, ERIC KAYS, and HENRI MCCRACKEN
Appeal2017-005564 1
Application 13/236,343 2
Technology Center 3600
Before NINA L. MEDLOCK, BART A. GERSTENBLITH, and
TARA L. HUTCHINGS, Administrative Patent Judges.
HUTCHINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1, 4, 7, and 13. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
Oct. 31, 2016) and Reply Brief ("Reply Br.," filed Feb. 15, 2017), and the
Examiner's Answer ("Ans.," mailed Dec. 15, 2016) and Final Office Action
("Final Act.," mailed May 31, 2016).
2 Appellants identify Cemer Innovation, Inc. as the real party in interest.
App. Br. 4.
Appeal2017-005564
Application 13/236,343
CLAIMED INVENTION
Claims 1, 7, and 13 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of assigning a healthcare provider to a
patient based on a resource-consumption score, which suggests a
relative amount of healthcare resources expended to provide care
to the patient, the method comprising:
launching a clinician-assignment application on a
computing device, which includes a processor coupled with a
computer memory device, wherein the clinician-assignment
application uses a graphical user interface to present one or more
outputs and to receive one or more inputs;
presenting by the clinician-assignment application in the
graphical user interface one or more outputs that include a list of
clinician identifiers and a set of patient information of the patient,
the set of patient information including a patient identifier of the
patient, the resource-consumption score of the patient, a primary-
provider identifier, and a primary-provider entry field, the
primary-provider entry field being usable to transform a
computing-data value that is read by the graphical user interface
to display the primary-provider identifier and that is stored in a
datastore;
rece1vmg clinician-detection events from real-time
location system (R TLS), the R TLS indicating locations within a
healthcare facility at which a tracked object is located;
receiving a request to determine the resource-consumption
score;
in response to receiving the request to determine the
resource-consumption score, summing a quantity of clinician-
detection events in which a previously-assigned clinician was
detected in a patient-care space of the patient during a historical
time interval, the summing of the quantify of clinician-detection
events yielding a total quantity of clinician-detection events,
wherein each clinician-detection event is recorded by the
RTLS having a signal receiver near the patient-care space, the
signal receiver receiving a respective signal emitted from a signal
transmitter during each clinician-detection instance, and
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wherein information provided in the signal is matched to
an identifier of the previously-assigned clinician;
presenting in the graphical user interface the resource-
consumption score which includes the total quantity of clinician-
detection events, together with the set of patient information,
wherein the resource-consumption score, the patient identifier,
and the clinician identifier are simultaneously presented in the
graphical user interface;
receiving an input selection of the clinician identifier and
the patient identifier; and
in response to receiving the input selection, transforming
the computing-data value to an updated computing-data value to
codify entry of the clinician identifier in the primary-provider
entry field, the updated computing-data value being stored in the
datastore.
REJECTION
Claims 1, 4, 7, and 13 are rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more.
ANALYSIS
Patent-Ineligible Subject Matter
Appellants argue the pending claims as a group. See App. Br. 14--28;
see also Reply Br. 3-18. We select independent claim 1 as representative.
The remaining claims stand or fall with claim 1. See 3 7 C.F .R.
§ 4I.37(c)(l)(iv).
In the Answer, the Examiner provided a new ground of rejection of
claims 1, 4, 7, and 13 under 35 U.S.C. § 101 as directed to a judicial
exception without significantly more. Ans. 2. In particular, the Examiner
determined that the claims are directed to the abstract idea of "tracking and
comparing clinician events and using rules to present a user-consumption
score." Id. The Examiner determined that this concept is similar to concepts
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previously identified by the courts as abstract ideas, such as comparing new
and stored information and using rules to identify options. Id. at 4 (citing
SmartGene, Inc. v. Advanced Biological Labs., SA, 555 F. App'x 950
(Fed. Cir. 2014)). The Examiner also determined that the claims are abstract
because they are directed to a mental process. Id. at 3 ( describing claim 1 as
a method for receiving clinician-detection events that involves summing a
quantity of clinician-detection events in which a previously-assigned
clinician was detected, presenting the resource-consumption score, and
transforming the computing data value to an updated computing-data value).
The Examiner also determined that the claims do not include additional
elements sufficient to amount to significantly more than the judicial
exception because "the additional computer elements, which are recited at a
high level of generality provide conventional computer functions that do not
add meaningful limits to practicing the abstract idea." Id. at 2.
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. Alice Corp. v. CLS Bank Int 'l, 573 U.S.
208,216 (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 (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, 573 U.S. at 217. The
first step in that analysis is to "determine whether the claims at issue are
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directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the 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." Id. (quoting Mayo,
566 U.S. at 79, 78).
The Court acknowledged in Mayo, 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. Therefore, the Federal Circuit has
instructed that claims are to be considered in their entirety to determine
"whether their character as a whole is directed to excluded subject matter."
McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1312
(Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015)).
The Federal Circuit has explained that "the 'directed to' inquiry
applies a stage-one filter to claims, considered in light of the [S]pecification,
based on whether 'their character as a whole is directed to excluded subject
matter."' Enfish, LLCv. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir.
2016) (quoting Internet Patents Corp., 790 F.3d at 1346). It asks whether
the focus of the claims is on a specific improvement in relevant technology
or on a process that itself qualifies as an "abstract idea" for which computers
are invoked merely as a tool. See id. at 1335-36. Here, the Specification,
including the claim language, makes clear that the claims focus on an
abstract idea, and not on any improvement to computer technology and/or
functionality.
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We are not persuaded that the Examiner erred in determining that the
claims are directed to an abstract idea or that the Examiner otherwise
overgeneralized the concept to which the claims are directed without taking
the actual claim language into account. App. Br. 15-21; see also Reply
Br. 16-17. The Specification is titled "GAUGING RESOURCE
INTENSIVENESS OF PROVIDING CARE TO A PATIENT." The
Specification describes that in a healthcare environment, a clinician's
assignments are manually defined before the clinician's shift begins. Spec.
,r 2. For example, a nurse manager manually fills out a paper assignment
sheet, assigning a nurse as a primary caregiver or a secondary caregiver of a
particular group of patients. Id. ,r,r 2-3. The nurse manager determines the
assignments without access to relevant information, such as how much time
is required to provide care to a patient. Id. ,r 3. Once created, the
assignments are manually entered into other electronic healthcare systems.
Id.
Claim 1 is a method of assigning a healthcare provider to a patient
based on a resource consumption score that suggests a relative amount of
healthcare resources expended to provide care to the patient. The method
recites the following steps: launching a clinician-assignment application;
presenting a list of clinician identifiers and a set of patient information of the
patient that includes, in part, a resource-consumption score; receiving
clinician-detection events indicating locations within a healthcare facility at
which a tracked object is located; receiving a request to determine the
resource-consumption score; in response to receiving the request, summing a
quantity of clinician-detection events in which a previously-assigned
clinician was detected in a patient-care space of the patient during a
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historical time interval; simultaneously presenting the resource-consumption
score, which includes the total quantity of clinician-detection events, patient
identifier, and clinician identifier; receiving an input selection of the
clinician identifier and the patient identifier; and in response to receiving the
input selection, transforming the computing-data value to an updated
computing-data value to codify entry of the clinician identifier in the
primary-provider entry field. By tracking clinician-detection events, such as
the number of times a clinician enters a room during a shift, the invention
determines a resource-consumption score, suggesting a relative amount of
healthcare resources expended to provide care to a patent. Spec. ,r,r 39, 47,
66. Considered in light of the Specification, the purported advance over the
prior art is, thus, an improved way of assigning a healthcare provider to a
patient. In that context, claim 1 is directed to collecting data (e.g., clinician-
detection events, patient identifier, clinician identifier), analyzing the data
(e.g., summing the clinician-detection events to yield a total quantity of
clinician detection events), and presenting the results (e.g., presenting the
resource-consumption score, which includes the total quantity of clinician-
detection events, together with a set of patient information). In other words,
we agree with the Examiner that claim 1 is directed to tracking and
comparing clinician-detection events and using rules to present a resource-
consumption score-a method of organizing human activity, and, therefore,
an abstract idea.
The Federal Circuit has consistently held that abstract ideas include
the concepts of collecting data, analyzing the data, and displaying the results
of the collection and analysis, including when limited to particular content.
See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d
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1332, 1340 (Fed. Cir. 2017) (identifying the abstract idea of collecting,
displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information,
analyzing information by steps people go through in their minds, or by
mathematical algorithms, and presenting the results of collecting and
analyzing information, without more, as matters within the realm of abstract
ideas); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168
(Fed. Cir. 2018) ("As many cases make clear, even if a process of collecting
and analyzing information is 'limited to particular content' or a particular
'source,' that limitation does not make the collection and analysis other than
abstract." (quoting Elec. Power Grp., 830 F.3d at 1353, 1355 (citing cases)).
We are not persuaded by Appellants' argument that the claims are tied
to a machine that plays a significant role in the claims. App. Br. 20-21.
Appellants assert that "the claimed methods cannot be performed mentally
because they rely on the use of machines and systems" (App. Br. 20), and
"the claims recite specific systems that are integral to the processes [ recited
in claim 1 ]" (id. ( directing our attention to the claimed R TLS) ). See also id.
at 21 (pointing to claim 7 's recitation for "receiving medical-device events
from a medical-device-alarm system, the medical-device-alarm system
including at least one of an oxygen monitor, an infusion pump, a cardiac
ventilator, a balloon pump, a patient bed, or a vital-sign detecting device").
The limitations Appellants identify as tying the claims to a machine relate to
limiting the source of the information collected and analyzed to a particular
source, but this is not enough to make the collection and analysis other than
abstract. See SAP Am., 898 F.3d at 1168 (quoting Elec. Power Grp.,
830 F.3d at 1353, 1355). Moreover, claim 1 is not tied to any particular
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novel machine or apparatus; instead, claim 1, for example, receives events
from any "real-time location system," which includes any signal receiver
that receives or detects a signal from a signal transmitter. See Spec. ,r 66.
Here, the Specification indicates that the claimed invention can be
implemented using only generic computer components. See, e.g., Spec.
,r,r 15-26, 28, 34 (identifying known medical devices, such as an oxygen
monitor, an infusion pump, a cardiac ventilator, a balloon pump, a patient
bed, and vital-sign detecting device), 37, 40, 66. See DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) ("[A]fter Alice, there
can remain no doubt: recitation of generic computer limitations does not
make an otherwise ineligible claim patent-eligible.").
We are not persuaded by Appellants' argument that the claims recite a
technology-based solution comprising a specific, discrete implementation.
See App. Br. 22-25; see also Reply Br. 3 ("the claims recite specific
processes that use particular techniques to generate and analyze particular
information and apply the results in a practical application so as to achieve a
desired outcome"). Attempting to draw an analogy to the claims at issue in
BASCOM, Appellants assert that claim 1 's limitations "describe 'a specific,
discrete implementation' of elements that add significantly more to the
alleged abstract ideas." App. Br. 23 (quoting BASCOM Global Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350 (Fed. Cir. 2016));
see also id. at 25-27 (inventive concept in the non-conventional and non-
generic arrangement of known elements); Reply Br. 9-12, 17-18. Yet, the
Federal Circuit in BASCOM held that the claimed invention improved the
performance of the computer system itself. BASCOM, 827 F.3d at 1351.
Specifically, the court found that the patent-at-issue claimed a "technology-
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based solution" to filter content on the Internet that overcame existing
problems with other Internet filtering systems, making it more dynamic and
efficient. Id. In BASCOM, the non-conventional and non-generic
arrangement of known conventional pieces resulted in an inventive concept.
Here, Appellants' claim 1 focuses on improving a business practice
that itself is an abstract idea using generic computer components in their
ordinary capacity. Merely limiting the scope of an abstract idea to recite a
higher level of specificity does not make a claim any less abstract.
Appellants do not identify, and we do not find, any improvement to
computer technology analogous to the ordered combination described in
BASCOM. Appellants do not identify, and we do not find, any additional
element or elements recited in claim 1 that yield an improvement in the
functioning of a computer, or to another technology or technical field, or that
otherwise indicates that the claimed invention integrates the abstract idea
into a "practical application," as that phrase is used in the USPTO's "2019
Revised Patent Subject Matter Eligibility Guidance," 84 Fed. Reg. 50, 55
(January 7, 2019). Instead, at best, claim 1 applies the abstract idea to a
particular technological environment. See Alice, 573 U.S. at 223 (limiting
the use of the abstract idea to a particular technological environment is
insufficient to transform an abstract idea into patent-eligible subject matter).
We are not persuaded by Appellants' argument that the Examiner
disregards the specific limitations of the claim to conclude the individual
functions are well-understood, routine, and conventional activities
previously known in the industry. App. Br. 23-25. Pointing to the
recitation of receiving clinician-detection events from RTLS, Appellants
assert that "[ t ]hese and other limitations realize the improvement to
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conventional industry practice." Id. at 24--25. Yet, the relevant inquiry is
whether the claim includes elements other than the abstract idea that
"'transform the nature of the claim' into a patent-eligible application."
Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 78). Here, receiving
clinician-detecting events is part of the abstract idea itself, and use of the
R TLS as the source of the clinician-detecting events does not transform the
abstract idea into patent-eligible subject matter.
To the extent Appellants maintain that claim 1 recites limitations that
are not well-understood, routine, and conventional activities, because
claim 1 is novel and/or non-obvious in view of the prior art, Appellants'
argument is not persuasive. Although the second step in the Mayo/Alice
framework is termed a search for an "inventive concept," the analysis is not
an evaluation of novelty or non-obviousness, but rather, a search for "an
element or combination of elements that is 'sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself."' Alice, 573 U.S. at 217-18 (alteration in
original) (quoting Mayo, 566 U.S. at 72-73). A novel and non-obvious
claim directed to a purely abstract idea is, nonetheless, patent-ineligible. See
Mayo, 566 U.S. at 90.
We are not persuaded that there is any parallel between claim 1 and
the claims in McRO. Reply Br. 10-13, 15, 16. Appellants maintain that
claim 1, like the claims found patent-eligible in McRO uses "a combined
order of specific rules to render information into a specific format that is
then applied to create at least one desired result by taking the unique data
that was generated and analyzed ... and controlling the presentation of the
specific results on a graphical user interface and receiving input." Id. at 12.
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Directing our attention to the limitations recited in claim 1 for presenting the
resource-consumption score, receiving an input selection, and transforming
the computing-data value, Appellants conclude that claim 1 thus does not
"abstractly cover results where 'it matters not by what process or machinery
the result is accomplished."' Id. at 12-13 (citation omitted).
Yet, McRO described an improvement to a 3-D computer generated
lip synchronization animation by using specific rules to define output morph
weight set stream as a function of phoneme sequence and time of the
phoneme sequence. McRO, 837 F.3d at 1310. Using these specific rules
allows a computer to produce accurate and realistic synchronization in
animated characters, which previously required human animators or artists
to produce. Id. at 1313. Here, Appellants have not persuaded us that
claim 1 recites a comparable improvement to technology.
We also are not persuaded by Appellants' argument that the Board's
decision in Ex parte Scott, Appeal No. 2012-009834, 2015 WL 1093453
(PTAB Mar. 12, 2015), found "a similar process of controlling how results
are presented via the graphical user interface [to] qualif[y] as significantly
more." Reply Br. 13 ("the Board found that a specific method of 'using a
tangible device-a user interface-to control the appearance of information
represented on a display' qualified as adding significantly more than the
abstract idea of 'displaying data"'). What a different panel did in a different
situation under a different set of facts has little bearing on the proper
disposition of this case. Scott also is a non-precedential decision of the
Board; therefore, it is not binding on this panel.
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
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sustain the Examiner's rejection of claim 1, and claims 4, 7, and 13, which
fall with claim 1.
DECISION
The Examiner's rejection of claims 1, 4, 7, and 13 under 35 U.S.C.
§ 101 is 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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