Ex Parte Wager et al

Patent Trial and Appeal Board

Dec 26, 2013

10679836 (P.T.A.B. Dec. 26, 2013)

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.
10/679,836 10/06/2003 Douglas W. Wager CRNI.108473 3738
46169 7590 12/27/2013
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
RAJ, RAJIV J
ART UNIT PAPER NUMBER
3626
MAIL DATE DELIVERY MODE
12/27/2013 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 DOUGLAS W. WAGER
and
JAY E. LINNEY
____________

Appeal 2011-011139
Application 10/679,836
Technology Center 3600
____________

Before: MICHAEL W. KIM, NINA L. MEDLOCK, and
PHILIP J. HOFFMANN, Administrative Patent Judges.

KIM, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-011139
Application 10/679,836

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STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 1, 2, 5-7, 9-24, and
39-491. We have jurisdiction to review the case under 35 U.S.C. §§ 134 and
6.
The invention relates generally to “a method for determining the
amount of work for one or more patients in a healthcare environment” and
“system for optimizing personnel planning and allocation in a healthcare
environment” (Spec. para. [0003]).
Claim 1, reproduced below, is further illustrative of the claimed
subject matter.
1. A computer-implemented method for determining
an amount of work provided by a health care provider for a
particular patient, the method comprising:
obtaining patient data for the particular patient directly
from a primary clinical information system;
determining a type of patient population that the
particular patient is a member of;
accessing work factors for the type of patient population;
comparing the data for the particular patient to the work
factors to determine which factors are satisfied;
accessing a weighted value for each satisfied work factor;
assigning each satisfied work factor with a weighted
score;
calculating, with a computer processor, a work score for
the particular patient using the satisfied work factors, wherein
the work score indicates a quantity of personnel hours
anticipated to serve the particular patient; and
storing the particular patient's work score.

1 Our decision will make reference to the Appellants’ Appeal Brief (“Br.,”
filed February 24, 2011) and the Examiner’s Answer (“Ans.,” mailed March
31, 2011).
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Application 10/679,836

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Claims 1, 2, 5, 7-17, 19-24, and 40 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Whiting-O’Keefe (US 6,061,657, iss.
May 9, 2000), Pollack (US 5,809,477, iss. Sep. 15, 1998), Andre (US
7,155,399 B2, iss. Dec. 26, 2006), and Zaleski (US 2003/0101076 A1, pub.
May 29, 2003).
Claims 6, 18, 39, and 49 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Whiting-O’Keefe, Pollack, Andre, Zaleski, and
Richardson (US 6,193,654 B1, iss. Feb. 27, 2001).
Claim 41 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Whiting-O’Keefe, Pollack, and Zaleski.
Claims 42 and 43 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Whiting-O’Keefe, Pollack, Zaleski, and Ross (US
7,076,436 B1, iss. Jul. 11, 2006)2.
Claims 44-47 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Whiting-O’Keefe, Pollack, Zaleski, Ross, and
Richardson3.
Claim 48 stands rejected under 35 U.S.C. § 103(a) as being

2 Page 27 of the Examiner’s Answer recites that claims 42 and 43 are
rejected as obvious in view of Whiting-O’Keefe, Zaleski, and Ross. See
also, page 25 of Office Action mailed August 31, 2010. Claims 42 and 43
ultimately depend from independent claim 41, which was rejected as
obvious in view of Whiting-O’Keefe, Pollack, and Zaleski. The Examiner’s
analysis of claims 42 and 43 mentions Pollack (Ans. 27). Appellants’
analysis of claims 42 and 43 also mentions Pollack (Br. 30). On these facts,
we treat the omission of Pollack from the statement of rejection of claims 42
and 43 as inadvertent and immaterial.
3 For reasons similar to those set forth above in our analysis of the statement
of rejection of claims 42 and 43, we also treat the omission of Pollack from
the statement of rejection of claims 44 and 45 as inadvertent and immaterial.
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unpatentable over Whiting-O’Keefe, Pollack, Zaleski, Ross, Richardson, and
Brandt (US 2003/0050797 A1, pub. Mar. 13, 2003).
We AFFIRM.

FACTUAL FINDING
We find the following fact by a preponderance of the evidence.
1. The Specification describes that a “work score may be a patient
classification score, a workload score or any other value that assigns a
classification value or an amount of work to the patient” (Spec. [0052]).

ANALYSIS
Obviousness Rejection of Claims 1, 2, 5, 7-17, 19-24, and 40
We are not persuaded the Examiner erred in asserting that a
combination of Whiting-O’Keefe, Pollack, Andre, and Zaleski renders
obvious the subject matter of claim 1. Appellants assert that Whiting-
O’Keefe fails to disclose “calculating, with a computer processor, a work
score for the particular patient using the satisfied work factors” (Br. 13-14).
Appellants’ assertion is misplaced. The Examiner does not rely solely on
Whiting-O’Keefe to disclose this aspect, but rather on a combination of
Whiting-O’Keefe and Pollack (Ans. 5-6). See In re Merck & Co. Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (the argument that a single reference alone
does not disclose the recited claimed steps is not persuasive because
nonobviousness cannot be established by attacking the references
individually when the rejection is predicated upon a combination of prior art
disclosures); In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“one cannot
show non-obviousness by attacking references individually where, as here,
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the rejections are based on combinations of references”).
Appellants then assert that “[t]he work factors of claim 1 relate to the
particular patient population to which the patient belongs, while Whiting-
O'Keefe estimates ‘charges’ for ‘episodes of care’ that are not patient-
specific” (Br. 14-15). We disagree. Whiting-O’Keefe discloses criteria and
characteristics that are patient-specific (Ans. 32). In particular, Whiting-
O’Keefe describes using a specific patient’s medical record and medical
history in order to estimate health care charges (col. 8:21-44; see Fig. 3).
While Whiting-O’Keefe does use a set of regression coefficients to estimate
charges, Whiting-O’Keefe also takes into account the specific health
conditions of the particular patient to determine the resources necessary to
treat that particular patient (col. 2:63 – col. 3:19). Thus, Whiting-O'Keefe
discloses estimating charges that are patient-specific.
We also are not persuaded the Examiner erred in asserting that a
combination of Whiting-O’Keefe, Pollack, Andre, and Zaleski discloses or
suggests the steps of “comparing the data for the particular patient to the
work factors to determine which factors are satisfied,” “accessing a weighted
value for each satisfied work factor,” and “assigning each satisfied work
factor with a weighted score,” as recited by claim 1, because Pollack does
not disclose “calculating a work score for a particular patient” (Br. 16).
Specifically, Appellants argue “[c]alculating a work score in claim 1 is
significantly different than determining bed availability in Pollack” (Br. 16).
We disagree. Appellants have not explained what these differences are, and
thus we agree with the Examiner that under a broadest reasonable
construction of “calculating a work score,” Pollack’s determination of bed
availability meets the aforementioned claim limitation (Ans. 5-6). That is,
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Pollack’s system determines a patient’s expected length of stay in a hospital
bed based upon the severity of the patient’s condition using a numerical
value (i.e., score) calculated from patient information for each diagnostic
category and each group of categories represented (col. 17:61 – col. 18:8;
see Figs. 2 and 3).
Appellants then assert Pollack fails to disclose “accessing work
factors for the type of patient population” and “work score factors” (Br. 15)
because Pollack “does not teach or suggest the use of a ‘primary clinical
information system’ which relates to the ‘planning and documenting of
care’” (id.). However, claim 1 does not recite “the use of a ‘primary clinical
information system’ which relates to the ‘planning and documenting of
care;’” it merely recites “obtaining patient data for the particular patient
directly from a primary clinical information system.” See CollegeNet, Inc. v.
ApplyYourself, Inc., 418 F.3d 1225, 1231 (Fed. Cir. 2005) (while the
specification can be examined for proper context of a claim term, limitations
from the specification will not be imported into the claims). Here, Pollack
discloses obtaining patient information from its computerized records (col.
10:35-43), which is all the claim requires.
Appellants additionally assert that “Pollack does not teach or suggest
calculating a work score for a particular patient using satisfied work factors”
(emphasis original) (Br. 16). Specifically, Appellants argue that “Pollack
quantifies the severity of a patient’s condition as it relates to the length of
patient stay and patient bed availability, while the work score of claim 1
indicates a quantity of personnel hours anticipated to serve the particular
patient” (emphasis original) (Br. 16). Appellants’ assertions are misplaced.
As discussed above Whiting-O’Keefe and Pollack are cited for disclosing
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calculating a work score for a particular patient, while the Examiner relies
on Andre to address wherein the work score disclosed by Whiting-O’Keefe
and Pollack indicates a quantity of personnel hours anticipated to serve the
particular patient (Ans. 6). See In re Merck & Co., Inc., 800 F.2d at 1097.
Appellants then assert Andre fails to disclose or suggest “wherein the
work score indicates a quantity of personnel hours anticipated to serve the
particular patient” because the amount of work performed by an employee in
Andre “is distinct from a work score based on the quantity of personnel
hours anticipated to serve a particular patient in claim 1” (Br. 16-17). We
disagree. Andre describes a scheduling and workload forecasting system
which determines the necessary staffing requirements for a call center queue
and determines the amount of work a call center agent can perform over time
to serve that particular queue based on the queue’s workload (col. 4:15-53
and col. 5:17-45). We note that Appellants’ Specification describes that a
“work score may be a patient classification score, a workload score or any
other value that assigns a classification value or an amount of work to the
patient” (FF 1). Thus, commensurate with the scope of Appellants’
Specification, Andre’s amount of work a call center agent can perform over
time properly corresponds to the recited work score.
Appellants further assert that Andre only takes into account the time
of one person, and not multiple personnel (Br. 17). Appellants’ assertion is
misplaced, as such a “multiple personnel” limitation is not set forth in the
claims; the relevant claim limitation at issue is “work factors.” Multiple
work factors can be performed by one person. Additionally, Appellants’
assertion is unpersuasive as it attacks Andre individually, while the
Examiner relies on the combination of Whiting-O’Keefe, Pollack, and Andre
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to disclose this limitation (Ans. 5-6). See In re Merck & Co. Inc., 800 F.2d
at 1097. The combination of Whiting-O’Keefe, Pollack, Andre, and Zaleski
discloses or suggests the step of “calculating, with a computer processor, a
work score for the particular patient using the satisfied work factors, wherein
the work score indicates a quantity of personnel hours anticipated to serve
the particular patient,” under a broad, but reasonable interpretation. See In
re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004)
(“[d]uring examination [of a patent application, a pending claim is] given
[the] broadest reasonable [construction] consistent with the specification,
and . . . claim language should be read in light of the specification as it
would be interpreted by one of ordinary skill in the art”) (internal citation
and quotations omitted).
For these reasons, we sustain the rejection of independent claim 1, and
its dependent claims 2, 5, and 7-11.
Appellants also assert that the Examiner erred in rejecting
independent claim 12, and its dependent claims 13-17 and 19-24, and
independent claim 40, for the same reasons the Examiner erred in rejecting
independent claim 1 (Br. 18-22). As we are not persuaded the Examiner
erred in rejecting independent claim 1, we also are not persuaded the
Examiner erred in rejecting claims 12-17, 19-24, and 40.

Obviousness Rejections of Claims 6, 18, 39, and 41-49
As Appellants only assert that claims 6, 18, 39, and 41-49 are
patentable for the same reasons as independent claim 1 or their respective
independent claims (Br. 22-32), we also sustain their rejections as obvious
over various combinations of Whiting-O’Keefe, Pollack, Andre, Zaleski,
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Richardson, Ross, and Brandt.

DECISION
The decision of the Examiner to reject claims 1, 2, 5-7, 9-24, and 39-
49 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

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