Stephen Trey. Moore

Patent Trials and Appeals Board

Oct 18, 2019

14193196 - (D) (P.T.A.B. Oct. 18, 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.
14/193,196 02/28/2014 Stephen Trey Moore 23956-0077001 4428
26201 7590 10/18/2019
FISH & RICHARDSON P.C. (AU)
P.O BOX 1022
Minneapolis, MN 55440-1022
EXAMINER
NAJARIAN, LENA
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
10/18/2019 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEPHEN TREY MOORE
____________

Appeal 2018-004938
Application 14/193,196
Technology Center 3600
____________

Before JEAN R. HOMERE, CAROLYN D. THOMAS, and
CARL W. WHITEHEAD JR., Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally to providing a user of a mobile
device access to patient information and patient physiological data. See
Abstr.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as AirStrip IP
Holdings, LLC. Appeal Br. 4.
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Independent claim 1, reproduced below, is representative of the
appealed claims:
1. A computer-implemented method for providing a user of
a mobile device access to patient information and patient
physiological data, the method being executed using one or more
processors and comprising:
receiving, by the one or more processors, user input, the
user input indicating a user command to display a base screen;
in response to the user input, determining, by the one or
more processors, that the user command comprises a request for user-
specific data associated to a plurality of patients treated by the user, a
first portion of the user-specific data being stored within a first patient
record module of a first facility system and a second portion of the
user-specific data being stored within a second patient record module
of a second facility system;
processing, by an adapter module, the request for the first
portion of the user-specific data and for the second portion of the user-
specific data to enable retrieval of first patient data and second patient
data from the first facility system and the second facility system,
respectively by using a user-facility index that maps an identifier
associated with the user to the first facility system and the second
facility system, in a plurality of facilities, that the user is associated
with as a healthcare provider;
transmitting, by the adapter module, the request for the
first portion of the user-specific data to a first host module of the first
facility system, and the request for the second portion of the user-
specific data to a second host module of the second facility system,
the first host module and the second host module respectively
orchestrating processing of the request received from the adapter
module;
receiving, by the adapter module, the first portion of the
user-specific data from the first host module of the first facility system
and the second portion of the user-specific data from the second host
module of the second facility system;
determining, by the one or more processors, a
configuration of one or more user-specific menu groups based on the
first portion of the user-specific data and the second portion of the
user-specific data;
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displaying the base screen on the mobile device, the base
screen comprising a menu comprising at least one default menu group
and the one or more user-specific menu groups, wherein icons within
one or more of the default menu group and the one or more user-
specific menu groups are user-selectable to provide access to patient
information and patient physiological data;
receiving, by the one or more processors, user input
requesting access to the patient information and the patient
physiological data; and
in response to the user input, displaying, by the one or
more processors, the patient information and the patient physiological
data in a patient screen that is configured based on a template that
defines a view to be displayed by the mobile device and defines which
portions of the patient information and the patient physiological data
is to be displayed in which portions of the patient screen.

Appellant appeals the following rejection:2
Claims 1–20 are rejected under 35 U.S.C. § 101 because the claimed
invention is directed to patent-ineligible subject matter. Final Act. 2–5.
We review the appealed rejections for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).

ANALYSIS
Rejection under § 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.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract

2 The Examiner withdraws the rejections of claims 1–20 under pre-AIA 35
U.S.C. § 103(a) and of claims 1–20 under 35 U.S.C. § 112 (pre-AIA),
second paragraph. See Ans. 3.
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ideas” are not patentable. 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 the 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, 130 S. Ct. 3218 (2010) (“Claims 1 and 4 in
petitioners’ application explain the basic concept of hedging, or protecting
against risk.”). For example, concepts determined to be abstract ideas, and
thus patent ineligible, include certain methods of organizing human activity,
such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski,
130 S. Ct. 3218 (2010)); mathematical formulas (Parker v. Flook, 437 U.S.
584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S.
63, 69 (1972)).
Recently, the USPTO published revised guidance on the application
of 35 U.S.C. § 101. USPTO’s 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).
Under the Revised Guidance “Step 2A,” the office first looks 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); and
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(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)-(c), (e)-(h)). 84 Fed. Reg. at
51–52, 55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, does the Office then
(pursuant to the Revised Guidance “Step 2B”) look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field. See MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. 84 Fed. Reg. at 56.
Step 2A, Prong 1 (Does the Claim Recite a Judicial Exception?)
With respect to independent method claim 1, and similarly, non-
transitory computer-readable storage claim 19 and system claim 20, the
Examiner determines that the claims are directed to “the concept of ‘using
categories to organize, store and transmit information.’ . . . such as
generating menus on a computer”, which we conclude are certain methods
of organizing human activity, which is a type of abstract idea. Final Act. 4.
In Cyberfone, for example, the Court held that “using categories to
organize, store, and transmit information is well-established,” and “the well-
known concept of categorical data storage, i.e., the idea of collecting
information in classified form, then separating and transmitting that
information according to its classification, is an abstract idea that is not
patent-eligible.” Cyberfone Sys., LLC v. CNN Interactive Grp., Inc., 558
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Fed. App’x. 988, 992 (Fed. Cir. 2014). Here, as in Cyberfone, information is
received, stored, organized, and transmitted.
The Specification discloses:
Patient information can be stored across multiple facilities associated
with respective health care providers. For example, healthcare
continua can include hospitals, clinics, laboratories, and/or other
healthcare facilities. In some instances, each healthcare facility had
its own data source for storing patient information and data associated
with services provided at the respective facility. For example,
multiple, different electronic medical records (EMRs) can be provided
for a particular patient across a healthcare continuum. In some
examples, such EMRs are vendor-specific, storing data and
information is disparate formats.
Spec. ¶ 2.

Physicians and other healthcare providers may be required to access
patient data and information from across a healthcare continuum. The
disparate nature, in which data and information may be stored, can
complicate retrieval and display of relevant patient information to
healthcare providers.
Id. at ¶ 3.

Implementations of the present disclosure are generally directed to an
enterprise scalable, data- and vendor-agnostic mobility architecture to
securely deliver patient data and information from medical devices,
electronic medical records (EMRs) and patient monitors to healthcare
providers anywhere across a healthcare continuum. More particularly,
implementations of the present disclosure provide integrated and
unified views of patient data and patient information on mobile
devices (e.g., smartphones, tablets) from a plurality of data sources
across the healthcare continuum. As discussed in further detail herein,
implementations of the present disclosure enable timely and
collaborative clinical decision-making, and enable healthcare systems
to better track quality metrics, empower a mobile workforce, expand
networks, and achieve clinical transformation.
Id. at ¶ 19.
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Claim 1 recites at least the following limitations: (1) “receiving . . .
user input . . . a user command to display a base screen,” (2) “determining
. . . that the user command comprises a request for user-specific data,”
(3) “processing . . . the request,” (4) “transmitting . . . the request . . . to
first/second host module,” (5) “receiving . . . the first/second portions,”
(6) “determining . . . a configuration of user-specific menu groups,”
(7) “displaying the base screen on the mobile device,” (8) “receiving . . .
user input requesting access to . . . information/data,” and (9) “displaying . . .
the patient information/data.” These limitations, under their broadest
reasonable interpretation, recite commercial or legal interactions akin to
legal obligations and/or business relations between a healthcare provider and
a patient because the limitations all recite operations that would ordinarily
take place during relationships (i.e., patient/doctor) between people.
Appellant challenges the Examiner’s determinations on the ground
that “the final Office action fails to identify an abstract idea . . . and/or
explain why the alleged abstract idea corresponds to a concept that the
courts have identified as an abstract idea” (Appeal Br. 17), and that the
Examiner’s characterization “is an overly broad characterization of the
subject matter of the claim language.” Id. at 18. We disagree with
Appellant.
It is plainly evident that the Examiner considered all the limitations in
the claim and the Examiner’s analysis, albeit supplemented by our analysis
under the revised guidance, is tethered to actual claim language. See Final
Act. 2–3. The Examiner condensed the abstract concept to “using categories
to organize, store and transmit information” (Final Act. 4), but this is simply
a higher level of abstraction. Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229,
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1240–41 (Fed. Cir. 2016). (“An abstract idea can generally be described at
different levels of abstraction. As the Board has done, the claimed abstract
idea could be described as generating menus on a computer, or generating a
second menu from a first menu and sending the second menu to another
location. It could be described in other ways, including, as indicated in the
specification, taking orders from restaurant customers on a computer.”)
Even if we assume arguendo that the subject matter of the instant
application “is distinct from Ameranth,” as proffered by Appellant,
Appellant fails to adequately show that claim 1 is not directed to any abstract
idea. See App. Br. 19. In any case, we conclude that the Examiner has
adequately shown that the present claims are similar to Ameranth at least
“because they recite determining a configuration of one or more menu
groups and displaying a screen comprising a menu.” See Ans. 4.
Again, under the first step of the Alice framework, “[w]e must first
determine whether the claims at issue are directed to a patent-ineligible
concept,” such as an abstract idea. Alice, 134 S. Ct. at 2355. Here, just
because Appellant points out that the claim includes more words than the
phrase the Examiner uses as an articulation of the abstract idea to which
he/she found the claim to recite, this is an insufficient reason to persuasively
argue that claim 1 is not directed to an abstract idea.
Further, the identified abstract idea need not encompass every claim
limitation. Otherwise, there would be no need for step two of the Alice
inquiry. Alice, 134 S. Ct. at 2355.
Therefore, for at least the aforementioned reasons, we agree with the
Examiner that claim 1 recites an abstract idea, which we conclude is certain
methods of organizing human activity.
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Step 2A—Prong 2 (integration into Practical Application) 3
Under the Revised Guidance, we now must determine if additional
elements in the claims integrate the judicial exception into a practical
application (see MPEP § 2106.05(a)–(c), (e)–(h)).
We discern no additional element (or combination of elements)
recited in Appellant’s representative claim 1 that integrates the judicial
exception into a practical application. See Revised Guidance, 84 Fed. Reg.
at 54–55 (“Prong 2”). For example, Appellant’s claimed additional elements
(e.g., “mobile device,” “processors,” “first/second facility system,” “an
adaptor module,” and “first/second host module”) do not: (1) improve the
functioning of a computer or other technology; (2) are not applied with any
particular machine (except for a generic computer); (3) do not effect a
transformation of a particular article to a different state; and (4) are not
applied in any meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment, such that the
claim as a whole is more than a drafting effort designed to monopolize the
exception. See MPEP §§ 2106.05(a)–(c), (e)–(h).
Appellant contends “claims 1–20 are directed to an improvement over
existing systems for displaying patient data and patient information . . . by
using a user-facility index that maps an identifier associated with the user to
the first facility system and the second facility system.” App. Br. 19.
Appellant’s Specification states:

3 We acknowledge that some of the considerations at Step 2A, Prong 2,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
revised guidance). For purposes of maintaining consistent treatment within
the Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
revised guidance). See Revised Guidance, 84 Fed. Reg. at 55 n.25, 27–32.

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In some examples, the data pointer cache 422 stores identifiers
associated with detailed patient data. In some example, the identifiers
point to particular data stores, in which to be retrieved patient
data/information is stored. In this manner, retrieval performance (e.g.,
speed) can be improved. In some example, the patient-to-provider
index 424 maps particular patient to one or more healthcare providers,
and/or particular healthcare providers to one or more patients.

Spec. ¶ 58.

Although “indexing” may be directed to the use of “computing”
resources, Appellant does not explain why the problem itself (i.e., “The
disparate nature, in which data and information may be stored, can
complicate retrieval and display of relevant patient information to healthcare
providers” Spec. ¶ 3) is unique to computer technology rather than to the
abstract idea itself of “using categories to organize, store and transmit
information.” Instead, the claims are directed to the general field of
indexing and searching documents by managing resources rather than to
addressing a specific technical problem associated with the management
and/or use of computer resources in particular. Appellant is reminded that
“relying on a computer to perform routine tasks more quickly or more
accurately is insufficient to render a claim patent eligible.” OIP Techs., Inc.
v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (citing Alice, 134
S. Ct. at 2359 (“use of a computer to create electronic records, track multiple
transactions, and issue simultaneous instructions” is not an inventive
concept)).
Similarly, the Federal Circuit in Erie determined “the abstract idea of
‘creating an index and using that index to search for and retrieve data”’ is an
exemplary activity of “organizing and accessing records through the creation
of an index-searchable database, includ[ing] longstanding conduct that
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existed well before the advent of computer and the Internet.” Intellectual
Ventures I LLC v. Erie Indemnity Co., 850 F.3d 1315, 1327 (Fed. Cir. 2017).
The Federal Circuit in Erie held “the claimed creation of an index used to
search and retrieve information stored in a database is [] abstract.” Id. The
Erie court further stated the claims were directed to an abstract concept
because “the heart of the claimed invention lies in creating and using an
index to search for and retrieve data.” Id. at 1328. Thus, the Erie court
determined indexing is an abstract idea.
For at least the reason noted supra, we determine that claim 1
(1) recites a judicial exception and (2) does not integrate that exception into
a practical application. Thus, representative claim 1 is directed to the
aforementioned abstract idea.

Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Turning to the second step of the Alice inquiry, we now look to
whether claim 1 contains any “inventive concept” or adds anything
“significantly more” to transform the abstract concept into a patent-eligible
application. Alice, 573 U.S. at 216. As recognized by the Revised
Guidance, an “inventive concept” under Alice step 2 can be evaluated based
on whether an additional element or combination of elements:
(1) adds a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field,
which is indicative that an inventive concept may be present; or
(2) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception, which is indicative
that an inventive concept may not be present.

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See Revised Guidance, 84 Fed. Reg. at 56; see MPEP § 2106.05(d).
Appellant broadly contends that the claims “provide a non-
conventional and non-generic arrangement of known, conventional pieces,
which qualifies claims 1, 19, and 20 as patent-eligible subject matter.”
Appeal Br. 17.
However, we find no element or combination of elements recited in
Appellant’s claim 1 that contains any “inventive concept” or adds anything
“significantly more” to transform the abstract concept into a patent-eligible
application. Appellant has not adequately explained how claim 1 is
performed such that it is not a routine and conventional function of a generic
computer. For example, Appellant’s Specification indicates that
“[p]rocessors suitable for the execution of a computer program include, by
way of example, both general and special purpose microprocessors, and any
one or more processors of any kind of digital computer.” Spec. ¶ 160;
Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (“[w]hether
something is well-understood, routine, and conventional to a skilled artisan
at the time of the patent is a factual determination.”).
Because Appellant’s independent claim 1 is directed to a patent-
ineligible abstract concept, does not include additional elements that
integrate the judicial exception into a practical application, and does not add
a specific limitation beyond the judicial exception that is not “well-
understood, routine, and conventional,” we sustain the Examiner’s rejection
of the claims 1–20 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter in light of Alice, its’ progeny, and the Revised Guidance.

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CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 § 101 Eligibility 1–20

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