Stephen Trey. Moore et al.

Patent Trials and Appeals Board

Dec 23, 2019

13798661 - (D) (P.T.A.B. Dec. 23, 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.
13/798,661 03/13/2013 Stephen Trey Moore 23956-0085001 2654
26201 7590 12/23/2019
FISH & RICHARDSON P.C. (AU)
P.O BOX 1022
Minneapolis, MN 55440-1022
EXAMINER
COBANOGLU, DILEK B
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
12/23/2019 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, THOMAS SCOTT WADE, and
LLOYD KORY BROWN
____________

Appeal 2018-000537
Application 13/798,661
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, MICHAEL C. ASTORINO, and
BRUCE T. WIEDER, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–16. We have jurisdiction under 35
U.S.C. § 6(b).
SUMMARY OF DECISION
We AFFIRM.
THE INVENTION
Appellant claims displaying patient data and/or information on mobile
devices. (Spec. ¶ 2, Title).

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Claim 1 is representative of the subject matter on appeal.
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 waveform
strip screen;
in response to the user input, processing, by the one or
more processors, patient-specific data to provide waveform
data; and
displaying the waveform strip screen on the mobile
device, the waveform strip screen displaying one or more
waveform strips, each waveform strip of the one or more
waveform strips being based on the waveform data, graphically
mimicking a real-world, physical waveform strip that is
standardly used by healthcare providers and comprising a
plurality of strip segments that appear to be folded, such that at
least one of the plurality of strip segments is fully displayed and
another one of the plurality of strip segments is partially
displayed.

THE REJECTION
1. Claims 1–16 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
2. Claims 1–12 and 15–16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Powell et al. (hereinafter “Powell”) (US 2010/0235782
A1; Sept. 16, 2010), Webb (US 2002/0154111 A1; Oct. 24, 2002),
Kaneko et al. (hereinafter “Kaneko”) (US 4,896,677; Jan. 30, 1990) and
further in view of O’Leary et al. (hereinafter “O’Leary”) (US 7,171,630 B2;
Jan. 30, 2007).
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3. Claims 13 and 14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Powell, Webb, Kaneko, O’Leary, and Bryant et al.
(hereinafter “Bryant”) (US 2012/0206475 A1; Aug. 16, 2012).
ANALYSIS
35 U.S.C. § 101 REJECTION
We will sustain the rejection of claims 1–16 under 35 U.S.C. § 101.
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. . . . If so, . . . then ask, “[w]hat
else is there in the claims before us?” . . . To answer that
question, . . . consider the elements of each claim both
individually and “as an ordered combination” to determine
whether the additional elements “transform the nature of the
claim” into a patent-eligible application. . . . [The Court]
described step two of this analysis as a search for an “‘inventive
concept’”—i.e., 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 Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217-218 (citing Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012))
(citations omitted).
To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. 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.’” See Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet
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Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir.
2015)). 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.
In so doing we apply a “directed to” two prong test: 1) evaluate
whether the claim recites a judicial exception, and 2) if the claim recites a
judicial exception, evaluate whether the judicial exception is integrated into
a practical application. 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 50–57 (Jan. 7, 2019). “A claim that integrates a
judicial exception into a practical application will 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.” Id. at 54.
The Examiner determines that the claims are directed to providing a
user of a mobile device access to patient information and patient
physiological data. (Final Act. 2). The Examiner determines that the claims
are directed to “receiving user input indicating a user command to display a
waveform strip screen, processing patent-specific data to provide waveform
data and displaying the waveform strips” which the Examiner determines is
an abstract idea because it uses categories to organize, store and transmit
information. The Examiner finds that the claims do not include additional
elements that are sufficient to amount to significantly more that the judicial
exception. (Id. at 3).
The Specification states that implementations of the present disclosure
provide methods for providing a user of a mobile device access to patient
information and patient physiological data. The Specification also states:
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methods include actions of receiving user input, the user input
indicating a user command to display a waveform strip screen,
in response to the user input, processing patient-specific data to
provide waveform data, and displaying the waveform strip
screen on the mobile device, the waveform strip screen
displaying one or more waveform strips, each waveform strip
of the one or more waveform strips being based on the
waveform data and graphically depicting a physical waveform
strip.
Spec. ¶ 4.
As such, the Specification supports the Examiner’s
determination that the claims are directed to providing a user of a
mobile device access to patient information and patient physiological
data and using categories to organize, store, and transmit information.
Consistent with the disclosure in the Specification, claim 1
recites “receiving . . . user input,” “processing . . . patient-specific
data,” and “displaying . . . on the mobile device.”
We thus agree with the Examiner’s findings that the claims are
directed to providing a user of a mobile device access to patient information.
As such, the steps of claim 1, for example, constitute “analyzing information
by steps people go through in their minds, or by mathematical algorithms,
without more, as essentially mental processes within the abstract-idea
category.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354
(Fed. Cir. 2016); see also buySAFE, Inc. v. Google, Inc., 765 F.3d 1350,
1355 (Fed. Cir. 2014) (claims directed to certain arrangements involving
contractual relations are directed to abstract ideas). Thus, we find that the
claims recite an abstract idea of a mental process. Guidance 84 Fed. Reg.
at 52.
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Turning to the second prong of the “directed to test”, claim 1 requires
a “mobile device,” and “one or more processors.” The recitation of these
words does not impose “a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to monopolize the
judicial exception.” Id. We find no indication in the Specification, nor does
Appellant directs us to any indication, that the operations recited in
independent claim 1 invoke any inventive programming, require any
specialized computer hardware or other inventive computer components,
i.e., a particular machine, or that the claimed invention is implemented using
other than generic computer components to perform generic computer
functions. 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 also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
claimed invention integrates the abstract idea into a “practical application,”
as that phrase is used in the revised Guidance. See Guidance, 84 Fed. Reg.
at 54–55.
In this regard, the recitation does not affect an improvement in the
functioning of a computer or other technology, does not recite a particular
machine or manufacture that is integral to the claims, and does not transform
or reduce a particular article to a different state or thing. Id. Thus, claim 1
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is directed to a judicial exception that is not integrated into a practical
application and thus is directed to an “abstract idea.”
Turning to the second step of the Alice analysis, because we find that
the claims are directed to an abstract idea, the claims must include an
“inventive concept” in order to be patent-eligible, i.e., there must be an
element or combination of elements that is sufficient to ensure that the claim
in practice amounts to significantly more than the abstract idea itself. See
Alice, 573 U.S. at 217-18 (alteration in original) (quoting Mayo
Collaborative Servs., 566 U.S. at 72–73.
The introduction of a computer (processors and mobile device) into
the claims does not alter the analysis at Alice step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
featur[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Id. at 223 (alterations in original) (citations omitted).
Instead, “the relevant question is whether the claims here do more
than simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Id. at 225. They do not.
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Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive, process, and display data amounts to electronic data
processing and display—some of the most basic functions of a computer.
All of these computer functions are well-understood, routine, conventional
activities previously known to the industry. See Elec. Power Grp., 830 F.3d
at 1354; see also In re Katz Interactive Call Processing Patent Litig., 639
F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction
of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can
be achieved by any general purpose computer without special
programming”). In short, each step does no more than require a generic
computer to perform generic computer functions. As to the data operated
upon, “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.” SAP Am. Inc. v. InvestPic,
LLC, 890 F.3d 1016, 1022 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claims add nothing that is not already present when the steps are
considered separately. In this regard, claim 1, for example recites “receiving
by the one or more processors, user input,” “processing . . . by one or more
processors . . . data,” and “displaying the waveform strip screen on the
mobile device.” The steps of receiving data, processing data and displaying
data are well-understood, and conventional steps performed by any generic
computer. The sequence of data reception-analysis-access/display is equally
generic and conventional or otherwise held to be abstract. See Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of
receiving, selecting, offering for exchange, display, allowing access, and
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receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed
Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that
sequence of data retrieval, analysis, modification, generation, display, and
transmission was abstract), Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of
processing, routing, controlling, and monitoring was abstract). The ordering
of the steps is, therefore, ordinary and conventional.
Claim 1 does not, for example, purport to improve the functioning of
the processors or mobile device. As we stated above, claim 1 does not affect
an improvement in any other technology or technical field. The
Specification spells out different generic equipment and parameters that
might be applied using this concept and the particular steps such
conventional processing would entail based on the concept of information
access under different scenarios. (See, e.g., Spec. ¶¶ 6, 22, 23, 118, 120).
Thus, claim 1 amounts to nothing significantly more than instructions to
apply the abstract idea of information access using some unspecified,
generic processor. Under our precedents, that is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 226.
We have reviewed all the arguments (Appeal Br. 14–17) Appellant
has submitted concerning the patent eligibility of the claims before us that
stand rejected under 35 U.S.C. § 101. We find that our analysis above
substantially covers the substance of all the arguments, which have been
made. But, for purposes of completeness, we will address various
arguments in order to make individual rebuttals of same.
We are not persuaded of error on the part of the Examiner by
Appellant’s argument that the claimed subject matter is rooted in computer
technology in order to overcome a problem specifically arising in the realm
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of computer networks and is therefore not abstract. Appellant argues that
the subject matter of the claims addresses issues resulting from displaying
traditionally physical media on devices as well as the disparate nature of
data from medical devices, electronic medical records and patient monitors.
In support of this argument, Appellant argues that the claims are like the
claims in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257
(Fed. Cir. 2014).
We are not persuaded by Appellant’s argument that the claim is
analogous to that in DDR Holdings, where the Court noted that a claim may
amount to more than any abstract idea recited in the claims when it
addresses a business challenge, such as “retaining website visitors,” where
that challenge is particular to a specific technological environment, such as
the Internet.
In DDR, the court stated that “the [] patent’s claims address the problem of
retaining website visitors that, if adhering to the routine, conventional
functioning of Internet hyperlink protocol, would be instantly transported
away from a host's website after ‘clicking’ on an advertisement and
activating a hyperlink.” DDR Holdings, 773 F.3d at 1257. This was done in
the claim by serving a composite page with content based on the link that
was activated to serve the page.
We agree with the Examiner that the problem addressed by the
claimed subject matter is providing doctors with a waveform strip that
appears like a real world waveform that appears to fold on a mobile device.
(Ans. 5). That this is done using one or more processors and a mobile
device is not pertinent to determining whether the claim itself provides a
technical solution to a technical problem. There is no technical problem
solved by the claimed invention. Rather the processors and mobile device
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exchange data and the mobile device displays the data in a well-understood
and conventional manner. And, unlike the situation in DDR Holdings, we
find no indication in the record, nor do Appellants point us to any indication,
that the mobile device and processors are used other than in their normal,
expected, and routine manner, e.g., for receiving and transmitting
information.
We do not agree with Appellant that the Examiner failed “to address
any additional elements both individually and as a combination, much less
why such fail to amount to significantly more than a judicial exception by
meaningfully limiting the judicial exception.” (Appeal Br. 16). The
Examiner clearly addressed the recitation of one or more processors on page
4 of the Final Action stating that the recitation is a recitation of generic
computer components recited as performing generic computer functions and
amounts to no more than implementing the abstract idea with a
computerized system.
In view of the foregoing, we will sustain the Examiner’s rejection of
claim 1. We will also sustain this rejection as it is directed to the remaining
claims because the Appellant does not argue the separate eligibility of these
claims.
REJECTIONS UNDER 35 U.S.C. §103(a)
We will not sustain the rejections of the appealed claims under 35
U.S.C. §103(a) because we agree with Appellant that the prior art does not
disclose “graphically mimicking a real-world, physical waveform strip that
is graphically depicted in a standard medical format.” (Appeal Br. 19). In
both rejections under 35 U.S.C. §103(a), the Examiner relies on paragraph
15 of Webb for teaching this subject matter. (Final Act. 7). Specifically, the
Examiner relies on the disclosure in paragraph 15 that animation capabilities
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allow waveform data to be scrolled across the screen to provide a “real-
time” effect. There is no disclosure in paragraph 15 of Webb that the
waveform graphically mimicks a real-world physical waveform. Contrary to
the findings of the Examiner, there is no evidence that the “real-time”
display in Webb mimics a “real-world” display.
In view of the foregoing, we will not sustain the rejection of claim 1
and claims 2–12 dependent thereon. We will also not sustain the rejection as
it is directed to claims 15 and 16 because these claims require the same
subject matter we found lacking in Webb. We will also not sustain the 35
U.S.C. §103(a) rejection of claims 13 and 14 for the same reason.
CONCLUSIONS OF LAW
We conclude the Examiner did not err in rejecting claims 1–16 under
35 U.S.C. § 101 and did err in rejecting claims 1–16 under 35 U.S.C.
§ 103(a).
DECISION
In summary:

Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–16 101 Eligibility 1–16
1–12, 15, 16 103 Powell, Webb,
Kaneko, O’Leary
1–12, 15,
16
13, 14 103 Powell, Webb,
Kaneko, O’Leary,
Bryant
13, 14
Overall
Outcome
1–16

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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