Ex Parte BRUSH

Patent Trial and Appeal Board

Dec 14, 2018

13457758 (P.T.A.B. Dec. 14, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/457,758 04/27/2012
46169 7590 12/18/2018
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
RYAN ALAN BRUSH
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.166974 1588
EXAMINER
SOREY, ROBERT A
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
12/18/2018 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 RY AN ALAN BRUSH
Appeal2017---005834
Application 13/457,758
Technology Center 3600
Before ANTON W. PETTING, BRUCE T. WIEDER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE 1
Ryan Alan Brush (Appellant) seeks review under 35 U.S.C. § 134 of a
final rejection of claims 1, 4, 5, 9, 10, and 14--19, the only claims pending in
the application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
1 Our decision will make reference to the Appellant's Appeal Brief ("Br.,"
filed September 28, 2016) and the Examiner's Answer ("Ans.," mailed
November 4, 2016), and Final Action ("Final Act.," mailed February 26,
2016).
Appeal2017-005834
Application 13/457,758
The Appellant invented a way of utilizing clinical information in
disparate formats or structures to generate multiple derived representations
of the clinical information, each derived representation structured to meet a
particular clinical need. Specification para. 5.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. One or more non-transitory computer storage media,
executable by a computing system having a plurality of parallel
processors and a plurality of low-latency processors operating
on a cloud computing platform,
for facilitating a method of utilizing patent data in
disparate formats to generate derived representations of
the patient data,
the method comprising:
[ 1] receiving at a central location
a first set of patient data directed to a particular data item
for a patient from a first medical organization,
the first set of patient data structured in a first format;
[2] receiving at the central location
a second set of patient data directed to the particular data
item for the patient from a second medical organization,
the second set of patient data structured in a second
format that is different from the first format,
the first medical organization and the second medical
organization being disparate such that they do not share
patient data with each other;
[3] generating, using at least one of the plurality of parallel
processors,
a first derived representation of the particular data item
comprising a timeline view of the particular data item,
2
Appeal2017-005834
Application 13/457,758
the first derived representation generated using the first
and second sets of patient data,
the first derived representation structured in a third
format,
the first derived representation configured for use by a
first computer application directed to a first clinical need;
and
[ 4] generating
a second derived representation of the particular data
item comprising an alert related to the particular data
item,
the second derived representation generated using the
first and second sets of patient data, the second derived
representation structured in a fourth format,
the second derived representation configured for use by a
second computer application directed to a second clinical
need;
[5] receiving a request from the first computer application or
the second computer application for the first derived
representation or the second derived representation
respectively; and
[ 6] communicating for presentation on a user interface
associated with the first computer application or the second
computer application
the first derived representation or the second derived
representation respectively.
The Examiner relies upon the following prior art:
Brackett US 2005/0114179 Al
Linthicum US 2010/0131293 Al
Fuhrmann US 2012/0179490 Al
Bhogal US 2013/0041971 Al
3
May 26, 2005
May 27, 2010
July 12, 2012
Feb. 14,2013
Appeal2017-005834
Application 13/457,758
Claims 1, 4, 5, 9, 10, and 14--19 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Claims 1, 4, and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Brackett and Linthicum.
Claims 9, 10, 14, 15, 18, and 19 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Brackett, Fuhrmann, and Linthicum.
Claims 16 and 17 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Brackett, Fuhrmann, Linthicum, and Bhogal.
ISSUES
The issues of eligible subject matter tum primarily on whether the claims
recite more than abstract conceptual advice of what a computer is to provide
without implementation details.
The issues of obviousness tum primarily on whether the prior art
describes the limitations in the claims.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to Claim Construction
01. The disclosure contains no lexicographic definition of "format."
4
Appeal2017-005834
Application 13/457,758
02. The ordinary meaning of "format" is the arrangement of data for
storage or display. 2
Facts Related to the Prior Art
Brackett
03.Brackett is directed to medical information processing and
analysis, and more particularly, techniques for summarizing
patient information available from a wide range of sources for
informing decisions related to diagnosis and treatment. Brackett
para. 1.
04. Brackett describes encapsulation and integration of disparate
patient data into a useable form. A multi-media patient summary
unifies different formats of patient information from different
systems for delivery to care providers for use in medical diagnosis
and care. Brackett para. 15.
OS.Brackett describes a multi-media patient summary including a
digital file encapsulating patient information of one or more
formats, generated by accessing patient information at a
compilation workstation from one or more systems, entering the
patient information into the digital file, storing the digital file onto
a machine readable medium, and loading the digital file at one or
more remote client workstations. Brackett para. 16.
2 American Heritage Dictionary, 2018
https://www.ahdictionary.com/word/search.html?q=format
5
Appeal2017-005834
Application 13/457,758
06.Brackett describes a picture archival communication system
(P ACS), which generally consists of image/ data acquisition,
controller and archival functions, and display subsystems, which
may be integrated by digital networks. Images and related patient
data may be sent from imaging modalities ( devices) to the P ACS.
For example, in a peer-to-peer network, an imaging modality
computer may "push" to a P ACS acquisition computer or the
P ACS acquisition computer may "pull." The P ACS acquisition
computer, along with other information handling applications,
such as a hospital information system (HIS), a radiology
department information system (RIS), may push imaging
examinations along with pertinent patient information to a P ACS
controller. The P ACS may upload generated and stored data to
the multi-media patient summary. Brackett para. 52.
07. Brackett describes a compilation workstation used to assemble
the patient information. The compilation workstation receives the
patient data from various systems, such as the MRI, CT, HIS, and
P ACS systems. The assembled multi-media patient summary
after deposit in a storage (memory) is available for access by
clients. Such clients may be local or remote, and may include, for
example, referring physicians, specialists, clinicians, other
caretakers, patients, and so forth. Brackett para. 53.
Fuhrmann
08.Fuhrmann is directed to electronic medical records systems and
more specifically to a plurality of separate entities maintaining
6
Appeal2017-005834
Application 13/457,758
separate electronic medical records systems, wherein the entities
can establish trusted relationships wherein trusted subset entities
automatically obtain each other's patient medical data as patients
move among the trusted subset entities as if the data is owned and
managed by each of the trusted subset entities and, in at least some
cases, so that updates to data at one of the entities are
automatically used to modify the data at the other of the trusted
subset entities. Fuhrmann para. 4.
09. Fuhrmann describes a process by which each of the entities in the
trusted partner subset monitors for modifications to the first data
subset and then pushes the modified first data subset to other
trusted subset entities. Fuhrmann para. 84.
Linthicum
IO.Linthicum is directed to providing graphical patient health record
timelines and providing electronic health record information
within and across clinical patient encounters. Linthicum para. 9.
11. Linthicum describes a graphical patient health record timeline
interface system presenting patient health record information in a
timeline for user interaction. Linthicum para. 10-11.
12. Linthicum describes a trending graph for interactive timeline
visualization over the course of a patient's history, combining
variables include gender, place of origin, etc. The graph can be
provided by a real-time configurable graphing widget that displays
any data type that benefits from a trending view. Showing labs,
meds, vitals, inputs and outputs, and being able to compare these
7
Appeal2017-005834
Application 13/457,758
variables over time can lead to better, individualized treatment, for
example. Linthicum para. 149.
ANALYSIS
Claims 1, 4, 5, 9, 10, and 14-19 rejected under 35 U.S.C. § 101 as directed
to a judicial exception without significantly more
Claim 1 recites receiving two sets of patient data, generating two
representations, and receiving a request for and sending one of the
representations. Thus, claim 1 recites receiving, analyzing, modifying, and
transmitting data. None of the limitations recite implementation details for
any of these steps, but instead recite functional results to be achieved by any
and all possible means. Data reception, analysis, modification, and
transmission are all generic, conventional data processing operations to the
point they are themselves concepts awaiting implementation details. The
sequence of data reception-analysis-modification-transmission is equally
generic and conventional. The ordering of the steps is therefore ordinary
and conventional. The two other independent claims 9 and 15 are
sufficiently similar to be accorded similar analysis. The remaining claims
merely describe process parameters, with no implementation details.
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, we 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
8
Appeal2017-005834
Application 13/457,758
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 Intl, 134 S. Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012)).
To perform this test, we must first determine whether the claims at issue
are directed to a patent-ineligible concept. The Examiner determines the
claims to be directed to
generating and updating representations of clinical data, which
at least correlates to the court identified abstract idea of (A) using
categories to organize, store, and transmit information, and/or to
the court identified abstract idea of (B) comparing new and
stored information and using rules to identify options. While the
claims do not explicitly recite abstract ideas (A) and/or (B), the
concepts are described by receiving patient data, generating a
timeline, generating an alert(s), rece1vmg a request,
communicating data, reformatting data, and receiving updated
data.
Final Act. 2-3.
Although the Court in Alice made a determination as to what the claims
were directed to, we find that this case's claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
The preamble to claim 1 does not recite what it is directed to, but the
steps in claim 1 result in sending data for some representation upon request
absent any technological mechanism other than a conventional computer for
9
Appeal2017-005834
Application 13/457,758
doing so. Although claim 1 recites using a parallel processor, this has been
generic for too long to distinguish the claim. The Specification at paragraph
5 recites that the invention relates to utilizing clinical information in
disparate formats or structures to generate multiple derived representations
of the clinical information, each derived representation structured to meet a
particular clinical need. Thus, all this evidence shows that claim 1 is
directed to deriving representations from data inputs, i.e. data processing.
This is consistent with the Examiner's determination.
It follows from prior Supreme Court cases, and Bilski (Bilski v Kappas,
561 U.S. 593 (2010)) in particular, that the claims at issue here are directed
to an abstract idea. The concept of data processing is a fundamental data
practice long prevalent in our system of commerce. The use of data
processing is also a building block of ingenuity in data collection and
interpretation. Thus, data processing, like hedging, is an "abstract idea"
beyond the scope of §101. See Alice Corp. Pty. Ltd., 134 S. Ct. at 2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the "abstract ideas" category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of data
processing at issue here. Both are squarely within the realm of "abstract
ideas" as the Court has used that term. See Alice Corp. Pty. Ltd., 134 S. Ct.
at 2357.
Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (holding that "collecting information, analyzing it, and
displaying certain results of the collection and analysis" are "a familiar class
10
Appeal2017-005834
Application 13/457,758
of claims 'directed to' a patent ineligible concept"); see also In re TL!
Commc 'ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, analysis,
modification, and transmission and does not recite an improvement to a
particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314--15 (Fed. Cir. 2016) (finding claims
not abstract because they "focused on a specific asserted improvement in
computer animation"). As such, claim 1 is directed to the abstract idea of
receiving, analyzing, modifying, and transmitting data.
The remaining claims merely describe process parameters. We conclude
that the claims at issue are directed to a patent-ineligible concept.
The introduction of a computer into the claims does not alter the analysis
at Mayo step two.
the 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."
11
Appeal2017-005834
Application 13/457,758
Alice Corp. Pty. Ltd., 134 S. Ct. at 2358 (citations omitted).
"[T]he relevant question is whether the claims here do more than simply
instruct the practitioner to implement the abstract idea [] on a generic
computer." Alice Corp. Pty. Ltd., 134 S. Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, analyzing, modifying, and transmitting data amounts
to electronic data query and retrieval----one of the most basic functions of a
computer. The limitation of using a parallel processor is not a step, but a
recitation of advice to use a generic form of processor. All of these
computer functions are well-understood, routine, conventional activities
previously known to the industry. See Elec. Power Grp. v. Alstom S.A.,
supra. See also In re Katz Interactive Call Processing Patent Litigation,
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, 898 F.3d 1161, 1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant's method add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
modification-transmission is equally generic and conventional or otherwise
12
Appeal2017-005834
Application 13/457,758
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 receiving payment recited an abstraction),
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378
(Fed. Cir. 2017) (sequence of data retrieval, analysis, modification,
generation, display, and transmission), Two-Way Media Ltd. v. Comcast
Cable Communications, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
(sequence of processing, routing, controlling, and monitoring). The ordering
of the steps is therefore ordinary and conventional.
Viewed as a whole, Appellant's claims simply recite the concept of data
processing as performed by a generic computer. To be sure, the claims
recite doing so by advising one to receive data from two locations in two
formats and use the data to form two representations in two more formats
and send one of those representations upon request. But this is no more than
the parameters of the technological environment for such data processing
and the generic computer processes necessary to process those parameters,
and do not recite any particular implementation.
The claims do not, for example, purport to improve the functioning of the
computer itself. Nor do they effect an improvement in any other technology
or technical field. The 25 pages of specification spell out different generic
equipment3 and parameters that might be applied using this concept and the
3 The Specification describes personal computers, server computers, hand-
held or laptop devices, multiprocessor systems, microprocessor-based
systems, set top boxes, programmable consumer electronics, network PCs,
minicomputers, mainframe computers. Spec. para. 18.
13
Appeal2017-005834
Application 13/457,758
particular steps such conventional processing would entail based on the
concept of data processing under different scenarios. They do not describe
any particular improvement in the manner a computer functions. Instead,
the claims at issue amount to nothing significantly more than an instruction
to apply the abstract idea of data processing using some unspecified, generic
computer. Under our precedents, that is not enough to transform an abstract
idea into a patent-eligible invention. See Alice Corp. Pty. Ltd., 134 S. Ct. at
2360.
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 2--4 and Answer 2-11 and
reach similar legal conclusions. In particular, we are not persuaded by
Appellant's argument that the Examiner failed to articulate the abstract idea
to which the claims are directed. Br. 16. As the Examiner responds, the
Examiner determines the claims are directed to "generating and updating
representations of clinical data." Ans. 3. As we determine supra, this is no
more than data processing, which was found to be abstract in Electric Power
supra.
Claims 1, 4, and 5 rejected under 35 U.S.C. § 103(a) as unpatentable over
Brackett and Linthicum
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 5-9 and Answer 11-15 and
reach similar legal conclusions. In particular, we are not persuaded by
Appellant's argument that "Brackett only discusses separate types of media
data being presented side by side, not actually combining the separate types
14
Appeal2017-005834
Application 13/457,758
into something new, such as the derived representation recited in the
claims." Br. 23. As the Examiner responds,
As per the distinction between a "side by side" representation of
Brackett ( without digressing too much here, there is actually
more to Brackett's multimedia patient summary than this) and the
"derived representation recited in the claims", there appears to be
none in terms of broadest reasonable interpretation. Bracket
teaches a multimedia patient summary where the data has been
converted into an efficient format and where translation may
include file formatting and this reads on a broad "derived
representation" as claimed.
Ans. 12. As the Examiner determines, the claims do not recite nor narrow
the manner or implementation of such derivation.
Claims 9, 10, 14, 15, 18, and 19 rejected under 35 U.S.C. § 103(a) as
unpatentable over Brackett, Fuhrmann, and Linthicum
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 9-19 and Answer 15-17 and
reach similar legal conclusions. In addition, Appellant argues that
Fuhrmann teaches away from a central location. Br. 25-26. But Appellant
does not show how Fuhrmann disparages using a central location, only that
Fuhrmann chooses a different model. Examiner applies Fuhrmann for
updating data in response to discovering it is stale, not for a central model.
What a reference teaches or suggests must be examined in the
context of the knowledge, skill, and reasoning ability of a skilled
artisan. What a reference teaches a person of ordinary skill is not
[] limited to what a reference specifically "talks about" or what
is specifically "mentioned" or "written" in the reference. Under
the proper legal standard, a reference will teach away when it
suggests that the developments flowing from its disclosures are
unlikely to produce the objective of the applicant's invention. In
15
Appeal2017-005834
Application 13/457,758
re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). A statement that a
particular combination is not a preferred embodiment does not
teach away absent clear discouragement of that combination. In
re Fulton, 391 F.3d at 1199-1200. [] [A] prior art reference that
does not specifically refer to one element of a combination does
not, per se, teach away. If it did, only references that anticipate
could be used to support an obviousness analysis. However, prior
art references that are capable of rendering an invention obvious
under a section 103 analysis are not limited to reference that also
anticipate the patent at issue.
Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005)
Claims 16 and 17 rejected under 35 U.S. C. § 103 (a) as unpatentable over
Brackett, Fuhrmann, Linthicum, and Bhogal
As to Appellant's Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action 19-22 and reach similar legal
conclusions. Appellant argues this rejection on the basis of the independent
claims and this is equally unpersuasive here.
CONCLUSIONS OF LAW
The rejection of claims 1, 4, 5, 9, 10, and 14--19 under 35 U.S.C. § 101
as directed to a judicial exception without significantly more is proper.
The rejection of claims 1, 4, and 5 under 35 U.S.C. § 103(a) as
unpatentable over Brackett and Linthicum is proper.
The rejection of claims 9, 10, 14, 15, 18, and 19 under 35 U.S.C.
§ 103(a) as unpatentable over Brackett, Fuhrmann, and Linthicum is proper.
The rejection of claims 16 and 17 under 35 U.S.C. § 103(a) as
unpatentable over Brackett, Fuhrmann, Linthicum, and Bhogal is proper.
16
Appeal2017-005834
Application 13/457,758
DECISION
The rejection of claims 1, 4, 5, 9, 10, and 14--19 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)(l)(iv) (2011).
AFFIRMED
17