Frederick Dewey et al.

Patent Trials and Appeals Board

Jul 24, 2019

13445925 - (D) (P.T.A.B. Jul. 24, 2019)

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.
13/445,925 04/13/2012 Frederick Dewey S31-03826A (S11-024) 1155
71897 7590 07/24/2019
KPPB LLP
2190 S. Towne Centre Place
Suite 300
Anaheim, CA 92806
EXAMINER
BRUSCA, JOHN S
ART UNIT PAPER NUMBER
1631
NOTIFICATION DATE DELIVERY MODE
07/24/2019 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):
PAIR@KPPB.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FREDERICK DEWEY, EUAN ASHLEY, CARLOS DANIEL
BUSTAMANTE, ATUL BUTTE, JAKE BYMES, and RONG CHEN
____________

Appeal 2018-005489
Application 13/445,925
Technology Center 1600
____________

Before JEFFREY N. FREDMAN, TAWEN CHANG, and DAVID COTTA,
Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal1 under 35 U.S.C. § 134(a) involving claims to a
method for resolving haplotype data. The Examiner rejected the claims 1, 4–
11, 14–25, and 27–30 as directed to patent-ineligible subject matter. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 Appellants identify the Real Party in Interest as The Board of Trustees of
the Leland Stanford Junior University (App. Br. 3). We have reviewed and
considered the Specification of Apr. 13, 2012 (“Spec.”); Final Office Act. of
Mar. 28, 2017 (“Final Act.”); Appeal Brief of Nov. 21, 2017 (“App. Br.”);
Examiner’s Answer of Mar. 7, 2018 (“Ans.”); and Reply Brief of May 7,
2018 (“Reply Br.”). An oral hearing was held on July 8, 2019.
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Statement of the Case
Background
The Specification teaches that “[w]hole genome sequencing of related
individuals provides opportunities for investigation of human recombination
and compound heterozygous loci contributing to Mendelian disease traits”
(Spec. ¶ 3). However, “[o]ne of the challenges to the interpretation of
massively parallel whole genome sequence data is the assembly and variant
calling of sequence reads against the human reference genome” (Spec. ¶ 4).
In particular, the Specification describes “a method for resolving long-range
haplotype[2] phase based on family pedigree data, inheritance state
determination, and population linkage disequilibrium data. A method
according to an embodiment of the present invention provides for the
evaluation of genome wide risk using phased haplotype data” (Spec. ¶ 13).
The Claims
Claims 1, 4–11, 14–25, and 27–30 are on appeal. Claim 1 is
representative and reads as follows:
1. A method for resolving haplotype phase, comprising:
receiving allele data describing allele information
regarding genotypes for a family comprising at least a mother, a
father, and at least two children of the mother and the father,
where the genotypes for the family contain single nucleotide
variants and storing the allele data on a computer system
comprising a processor and a memory;
receiving pedigree data for the family describing
information regarding a pedigree for the family and storing the

2 A haplotype is composed of a set of genes in a single person that were
inherited together as a unit from a single one of the parents. See
https://www.merriam-webster.com/dictionary/haplotype
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pedigree data on a computer system comprising a processor and
a memory;
determining an inheritance state for the allele information
described in the allele data based on identity between single
nucleotide variants contained in the genotypes for the family
using a Hidden Markov Model having hidden states
implemented on a computer system comprising a processor and
a memory,
wherein the hidden states comprise inheritance
states, a compression fixed error state, and an MIE-rich
fixed error state,
wherein the inheritance states are maternal
identical, paternal identical, identical, and non-identical;
receiving transition probability data describing transition
probabilities for inheritance states and storing the transition
probability data on a computer system comprising a processor
and a memory;
receiving population linkage disequilibrium data and
storing the population disequilibrium data on a computer
system comprising a processor and a memory;
determining a haplotype phase for at least one member of
the family based on the pedigree data for the family, the
inheritance state for the information described in the allele data,
the transition probability data, and the population linkage
disequilibrium data using a computer system comprising a
processor and a memory;
storing the haplotype phase for at least one member of
the family using a computer system comprising a processor and
a memory; and
providing the stored haplotype phase for at least one
member of the family in response to a request using a computer
system comprising a processor and a memory.

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The Rejection
The Examiner rejected claims 1, 4–11, 14–25, and 27–30 under
35 U.S.C. § 101 as directed to an abstract idea (Final Act. 2–5).
Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas are not patentable.” See, e.g., Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See Alice, 573
U.S. at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and therefore patent
ineligible, include certain methods of organizing human activity, such as
fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S.
at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)). Concepts determined to be patent eligible include physical and
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chemical processes, such as “molding rubber products” (Diamond v. Diehr,
450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 184 n.7 (quoting Corning v.
Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson,
409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws,[] and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook), 187 (“It is now commonplace
that an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
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“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The United States Patent and Trademark Office published revised
guidance on the application of 35 U.S.C. § 101. USPTO’s 2019 Revised
Patent Subject Matter Eligibility Guidance (“Guidance”).3 Under the
Guidance, in determining what concept the claim is “directed to,” we first
look to whether the claim recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental economic
practice, or mental processes) (Guidance Step 2A, Prong 1);
and
(2) additional elements that integrate the judicial
exception into a practical application (see MPEP § 2106.05(a)–
(c), (e)–(h)) (Guidance Step 2A, Prong 2).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim contains an “‘inventive concept’ sufficient to ‘transform’”
the claimed judicial exception into a patent-eligible application of the
judicial exception. Alice, 573 U.S. at 221 (quoting Mayo, 566 U.S. at 82).
In so doing, we thus consider whether the claim:
(3) adds a specific limitation beyond the judicial
exception that are not “well-understood, routine and
conventional in the field” (see MPEP § 2106.05(d)); or

3 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50–
57 (January 7, 2019).
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(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.
(Guidance Step 2B). See Guidance, 84 Fed. Reg. at 54–56.
Analysis
Applying the Revised Guidance to the facts on this record, we find
that Appellants’ claims 1, 4–11, 14–25, and 27–30 are directed to patent-
ineligible subject matter. Because the same issues are present in each of the
claims, we focus our consideration on representative claim 1. The same
analysis applied below to claim 1 also applies to the other rejected claims.
A. Guidance Step 2A, Prong 1
The Revised Guidance instructs us first to determine whether any
judicial exception to patent eligibility is recited in the claim. The Revised
Guidance identifies three judicially-excepted groupings identified by the
courts as abstract ideas: (1) mathematical concepts, (2) certain methods of
organizing human behavior such as fundamental economic practices, and (3)
mental processes.
The Examiner finds that the claims are
directed to a judicial exception of an abstract idea of analyzing
family quartet genotype data and pedigree data, determining
inheritance states of alleles using a hidden Markov model, and
determining haplotype phasing in at least one member of the
family quartet, which is similar to the abstract idea of
organizing information through mathematical correlations
(Final Act. 3).
We agree with the Examiner that claim 1 recites patent-ineligible
subject matter. More specifically, claim 1, reproduced above, recites the
following steps: (1) “receiving allele data,” (2) “receiving pedigree data,”
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(3) “determining an inheritance state . . . using a Hidden Markov Model,” (4)
“receiving transition probability data,” (5) “receiving population linkage
disequilibrium data,” (6) “determining a haplotype phase,” (7) “storing the
haplotype phase,” and (8) “providing the haplotype phase” (App. Br. 85–
86). Under the broadest reasonable interpretation, limitations (1), (2), (4),
(5), (7), and (8) recite mental steps of receiving, storing, or providing
information, which are actions that can be performed in the mind. Likewise,
under the broadest reasonable interpretation, limitations (3) and (6) drawn to
determining steps recite mathematical concepts.
The claimed invention is described in the Specification as a solution
to a problem in using haplotype pedigree and population data for personal
genomic risk prediction because “[c]urrent risk prediction pipelines do not
incorporate parent-of-origin into pipelines for genome annotation, despite
evidence for specific effects of risk alleles for common disease, including
diabetes type II, depending on parent of origin.” (Spec. ¶ 17).
The Specification explains that “[h]aplotype phase is important to
understanding genetic risk in patients with and without disease phenotypes”
and teaches a formula to perform such phasing:

(Spec. ¶ 91; cf. claim 25).
The Federal Circuit has “recognize[d] that defining the precise
abstract idea of patent claims in many cases is far from a ‘straightforward’
exercise.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1150
(Fed. Cir. 2016) (quoting DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
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1245, 1257 (Fed. Cir. 2014)). However, “we continue to ‘treat[] analyzing
information by steps people [could] go through in their minds, or by
mathematical algorithms, without more, as essentially mental processes
within the abstract-idea category.’” Id. at 1146–47 (quoting Electric Power
Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (citations
omitted)). The Federal Circuit has recognized that “a claim for a new
abstract idea is still an abstract idea.” Id. at 1151. It is well established that
mental processes are abstract ideas.
CyberSource instructs that “a method that can be performed by human
thought alone is merely an abstract idea and is not patent-eligible under §
101.” CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373,
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.”). And, “if a claim is directed
essentially to a method of calculating, using a mathematical formula, even if
the solution is for a specific purpose, the claimed method is nonstatutory.”
Parker v. Flook, 437 U.S. 584, 595 (1978).
Here, the claims recite steps for receiving and/or analyzing
information, which people could go through in their minds, or by
mathematical algorithms, which is a mental process within the abstract-idea
category. The focus “is on selecting certain information, analyzing it using
mathematical techniques, and reporting or displaying the results of the
analysis. That is all abstract.” SAP America, Inc. v. Investpic, LLC, 898 F.3d
1161, 1167 (Fed. Cir. 2018). Moreover, the claims recite making
computational predictions using mathematical formulas. Accordingly, we
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conclude that the steps of claim 1 recite the judicial exceptions of
mathematical concepts and mental processes.
B. Guidance Step 2A, Prong 2
Having determined that the claims are directed to a judicial exception,
the Revised Guidance directs us to next consider whether the claims
integrate the judicial exception into a practical application. Guidance Step
2A, Prong 2. “[I]ntegration into a practical application” requires that the
claim recite an additional element or a combination of elements, that when
considered individually or in combination, “apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Guidance at 54.
Here, there is no practical integration of the abstract idea. Other than
the limitations directed to the abstract idea, discussed above, the invention is
claimed at a very high level of generality and is only limited in the type of
data used in computationally resolving the haplotype phase or how the
results are displayed. Furthermore, the end result of the claimed method is
providing the data, including for uses such as prognosis in dependent claim
10. The end result here is like the “indicates a need” language found
insufficient in Mayo, 566 U.S. at 74, 86. Moreover, claim 1 does not include
a step equivalent to the treatment step in Vanda Pharm. Inc. v. West-Ward
Pharm. Int. Ltd., 887 F.3d 1117, 1134 (Fed. Cir. 2018).
Appellants argue that
In Ambry, the claims at issue compared a patient’s gene
sequence to a wild-type sequence to identify differences and
similarities between the two sequences. [In re BRCA1- &
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BRCA2-Based Hereditary Cancer Test Patent Litig., 774 F.3d
755 (Fed. Cir. 2014)]. In contrast to Ambry, Appellant’s claim
1 determines inheritance states based on a Hidden Markov
Model with particular hidden states, and generates a haplotype
phase based on transition probabilities, inheritance states, and
population disequilibrium data. Appellant’s claim 1 possesses
no reference sequence and does not produce a list of similarities
and differences between a subject and target data. Thus, claim
1 describes a unique and technical method for generating
haplotype phase; it does not simply perform a comparison.
Thus, claim 1 is unlike Ambry.
(App. Br. 19).
We find this argument unpersuasive as it acknowledges that the
claims use mental processes to receive types of data and then apply
mathematical transformations like the Hidden Markov Model to natural
phenomena such as inheritance states and haplotype data to determine a
“haplotype phase,” with this determination being stored in a computer. As
in BRCA1, the “covered comparisons are not restricted by the purpose of the
comparison or the alteration being detected. Because of its breadth, the
comparison step covers detection of yet-undiscovered alterations.” BRCA1,
774 F.3d at 764.
We are unpersuaded by Appellants’ reliance on Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) (see App. Br. 20). Enfish
explains that “the first step in the Alice inquiry . . . asks whether the focus of
the claims is on the specific asserted improvement in computer capabilities
. . . or, instead, on a process that qualifies as an ‘abstract idea’ for which
computers are invoked merely as a tool.” Enfish, 822 F.3d at 1335–6.
Applied to claim 1, the claimed method does not teach a technical
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improvement in a computer processor, but rather use the computer as a tool
to improve data analysis (see claim 1, Spec. ¶ 61, which states that “the
present invention is not limited to computer system 100 as known at the time
of the invention. Instead, the present invention is intended to be deployed in
future computer systems with more advanced technology that can make use
of all aspects of the present invention.”). “[T]he focus of the claims is not
any improved computer or [device], but the improved mathematical
analysis; and indeed, the specification makes clear that off-the-shelf . . .
technology is usable to carry out the analysis.” SAP, 898 F.3d at 1168.
While Appellants compare the improvement in computer animation in
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299 (Fed. Cir.
2016) to the instant claims, we find the comparison unpersuasive.
Appellants contend that like “McRO, the recited claim describes specific
rules and features (through the use of a Hidden Markov Model having
specific hidden states) to identify inheritance states in order to solve the
problem of determining accurate, long-range phased haplotypes for a
member of a family” (App. Br. 22). Appellants contend “the specific
solution Appellant’s claim 1, as described above, solves the technical
problem of the inability to generate accurate, long-range phased haplotypes”
(App. Br. 23).
In McRO, the method integrated specific process steps of phoneme
analysis to obtain facial expression control of animated characters, thereby
integrating the improvement into the animation process. See McRO, 837
F.3d at 1315. McRO was a computer based process that improves operations
on the computer animation process itself, while claim 1 uses naturally
occurring data composed of allele and pedigree information in a
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mathematical operation with the Hidden Markov Model to process and
determine haplotype phase data. Unlike McRO, the computer in claim 1 is
simply used as a tool to perform the mathematical operation, and the claim
does not improve the computer itself. Claim 1 does not integrate the process
steps into a practical improvement because the final step simply provides
data, generated by the mathematical algorithm based on naturally occurring
information, for further consideration. Therefore, contrary to McRO, where
the ultimate product produced was a synchronized computer animation that
was itself the transformative use, the result of the presently claimed method
is information itself, without being directed to any particular use of that
information other than “providing the haplotype phase . . . in response to a
request” (Claim 1). See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1355 (Fed. Cir. 2016) (“[M]erely selecting information, by content or
source, for collection, analysis, and display does nothing significant to
differentiate a process from ordinary mental processes.”)
Appellants’ arguments regarding the use of the Hidden Markov Model
mathematical formula reinforces the finding that the claims are merely
directed to the abstract ideas of mathematical concepts. In McRO, the
Federal Circuit held that claims that “set out meaningful requirements for [a]
first set of rules” by which a computer could synchronize animated lip
movements to spoken sounds were not directed to an abstract idea but to “a
process specifically designed to achieve an improved technological result,”
that result being a computer-generated animation having automatically
synchronized mouth movements. McRO, 837 F.3d at 1313, 1316. The
present claims do not recite the claimed specificity of technological
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improvement that the Federal Circuit found present in the invention of
McRO.
We find the instant claims similar to those in SmartGene, where the
Federal Circuit held that claims directed to “comparing new and stored
information and using rules to identify medical options” did not
satisfy Alice step one. See SmartGene, Inc. v. Advanced Biological Labs.,
SA, 555 F. App’x 950, 951–52, 955–56 (Fed. Cir. 2014) (nonprecedential).
As in Smartgene, the instantly claimed steps do not rely on an inventive
device or technique for displaying information or new techniques for
obtaining biological information, but rather constitute a recitation of steps
for mathematically manipulating naturally occurring data. See SmartGene,
555 Fed. Appx. at 954 (holding claims were patent ineligible because they
did “no more than call on a ‘computing device,’ with basic functionality for
comparing stored and input data and rules, to do what doctors do
routinely.”).
Therefore, on this record, we conclude that the ineligible subject
matter in Appellants’ claim 1 is not integrated into a practical application.
C. Guidance Step 2B
Having determined that the judicial exception is not integrated into a
practical application, the Revised Guidance requires us to evaluate the
additional elements individually and in combination to determine whether
they provide an inventive concept, such as a specific limitation beyond the
judicial exception that is not well-understood, routine, conventional in the
field, or simply appends well-understood, routine, conventional activities
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previously known to the industry, specified at a high level of generality, to
the judicial exception. See 84 Fed. Reg. 51.
Appellants contend that “claim 1 adds significantly more than [an]
abstract idea because it recites a non-conventional and non-generic
arrangement of elements, which also improve a technical field” (App. Br.
24). Appellants assert
the particular arrangement of Appellant’s claim 1 includes a
specific Hidden Markov Model to determine inheritance states,
and utilizes the determined inheritance state, along with linkage
disequilibrium and transition probability inputs to determine
accurate, long-range, haplotype phases. Other attempts at
determining a haplotype for an individual have not necessarily
relied on these features, much less all of these features in this
arrangement.
(App. Br. 24). Appellants conclude that “claim 1 is not directed to merely
performing mathematical operations on a computer, but rather imposes
meaningful limits on any such operations in that the mathematical operations
are applied to improve an existing technology” (App. Br. 25).
We are not persuaded by Appellants’ arguments. We do not dispute
that the use of mathematical operations may be “a positive and valuable
contribution to science. But even such valuable contributions can fall short
of statutory patentable subject matter, as it does here.” Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371, 1380 (Fed. Cir. 2015). There is
nothing in the Specification indicating that, other than the patent-ineligible
abstract ideas, any steps or components recited in the claims are not generic
or conventional. The methods recited in the claims may be implemented by
“a digital computer system 100 such as generally shown in Figure 8. Such a
digital computer or embedded device is well-known in the art” (Spec. ¶ 56).
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The Specification explains that an ordinary artisan “is familiar with the use
of computers and software languages and, with an understanding of the
present disclosure, will be able to implement the present teachings for use on
a wide variety of computers” (Spec. ¶ 62).
Appellants point to no additional steps that could not be performed
mentally or without using a generic computer. The use of a generic
computer to perform generic computer functions that are “well-understood,
routine, conventional activit[ies]” previously known in the industry is not
enough to transform the abstract idea into a patent-eligible invention. See
Alice, 573 U.S. at 225–26.
We find that Appellants’ claims do not require anything other than the
use of conventional and well-understood techniques and equipment to gather
and process data according to the recited judicial exception. Accordingly,
the preponderance of evidence of record supports the Examiner’s finding
that Appellants’ claimed invention is directed to patent-ineligible subject
matter. The rejection of claim 1 under 35 U.S.C. § 101 is affirmed.
As to claims 7, 8, 10, 11, 17, 18, 20, and 21, while these claims are
separately argued, the same analysis discussed above applies and these
claims fall with claim 1 for the reasons given above.
Claims 9 and 19
These two claims differ from claim 1 because they recite a final step
of “providing the drug for treatment” based on the mathematical calculations
performed in claims 1 and 11 respectively. While this limitation is facially
similar to Vanda, with a final drug administration step, in Vanda, the
administration step was specifically directed to connecting a CYP2D6 poor
metabolizer genotype with iloperidone treatment. Vanda, 887 F.3d at 1121.
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Vanda distinguished Mayo by finding “the claims here are directed to a
specific method of treatment for specific patients using a specific compound
at specific doses to achieve a specific outcome.” Id. at 1136.
The instant claims 9 and 19, unlike those in Vanda, are not directed to
a specific method of treatment, do not identify specific patients, do not recite
a specific compound, do not prescribe particular doses, and do not identify
the resulting outcome. Therefore, the reasoning in Vanda supports a finding
that the instant claims are not patent eligible, because the claims do not
recite a new treatment for an ailment but rather recite application of a
mathematical algorithm to identify treatments that might be used for
particular conditions, just as a doctor uses ordinary medical judgement to
identify treatments which might then be used to treat a patient.
Accordingly, the preponderance of evidence of record supports the
Examiner’s finding that Appellants’ claimed invention is directed to patent-
ineligible subject matter. The rejection of claims 9 and 19 under 35 U.S.C.
§ 101 is affirmed.
CONCLUSION
We affirm the Examiner’s rejection of claims 1, 4–11, 14–25, and 27–
30 under 35 U.S.C. § 101.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED