Ex Parte Cales

Patent Trial and Appeal Board

May 24, 2018

14921850 (P.T.A.B. May. 24, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/921,850 10/23/2015
68820 7590 05/29/2018
Frisina, LLC
4600 Euclid Ave. Suite 420
Cleveland, OH 44103
FIRST NAMED INVENTOR
Richard Cales
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.
12111601.006 1348
EXAMINER
LE, LINH GIANG
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
05/29/2018 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):
dominic @FrisinaIP.com
assistant@FrisinaIP.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD CALES
Appeal2018-002479
Application 14/921,850
Technology Center 3600
Before CARL W. WHITEHEAD JR., JASON V. MORGAN, and
AMBER L. HAGY, Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-19, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
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Application 14/921,850
STATEMENT OF THE CASE
The claims are directed to fully automated medical coding software.
(Spec. 1: 11.) By way of background, Appellant's Specification describes
coding systems used by physicians to assign a "medical evaluation and
management code to doctor-patient encounters so that the physician[ s] may
be compensated for [their] work." (Id. at 1 : 14--15.) Appellant's
Specification notes that "computers have been used to partially automate the
process of medical coding," but states that"[ w ]hat is missing in the art is a
system that obviates the need for a medical coding professional to check a
physician's inputs, or to assimilate data from incompatible external systems,
and ensure that the correct medical evaluation and management code is
assigned." (Id. at 1:26-27, 2:12-15.)
Exemplary Claim
Claim 1, the sole independent claim, is exemplary of the claimed
subject matter, and is reproduced below with the disputed limitations
italicized:
1. A co-operable set of computer programs for recording
patient interactions, comprising a set of instructions,
portions of which are executable on at least a mobile
computing device, the co-operable set of computer programs
being adapted to carry out the acts of:
detecting a clinical setting parameter, wherein the parameter
value is set by an act of an examining physician comprising
initializing one of a plurality of complementary clinical
computer programs;
determining a first set of elemental clinical data fields
corresponding to the clinical setting parameter that are
potentially relevant to determination of a medical evaluation
and management code characterizing a physician-patient
interaction;
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rendering an electronic clinical form containing known-relevant
elemental clinical data fields requiring input by the
examining physician;
displaying further elemental clinical data fields on the
electronic form, or a separate electronic form, one or more
of the further elemental clinical data fields being found
relevant, based upon input by the examining physician, to
determination of a medical evaluation and management code
characterizing the physician-patient interaction;
eliminating elemental clinical data fields as irrelevant to
determination of a medical evaluation and management
code characterizing the physician-patient interaction based
upon input by the examining physician;
recording pharmacy orders, lab orders, referrals, and/or any act
of the examining physician relevant to determination of a
medical evaluation and management code characterizing the
physician-patient interaction;
and assigning a medical evaluation and management code
according to quantified risk, physical examination, and
complexity of the physician-patient encounter.
References
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Rosenfeld et al. ("Rosenfeld")
Reicher et al. ("Reicher")
US 2005/0159987 Al
US 2010/0138239 Al
Rejections 1
July 21, 2005
June 3, 2010
Claims 1-19 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter ("computer program per se"). (Final Act. 3.)
1 All rejections are under the provisions of Title 3 5 of the United States
Code in effect after the effective date of the Leahy-Smith America Invents
Act of 2011. (Final Act. 2.)
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Claims 1-19 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter ("abstract idea"). (Final Act. 3-8.)
Claims 1-11, 15, and 16 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Reicher and Rosenfeld. (Final Act. 8-14.)
Issues
(1) Whether the Examiner erred in rejecting claims 1-19 under
35 U.S.C. § 101 as failing to "fall within at least one of the four categories of
patent eligible subject matter because the claims are directed to a computer
program per se[,] which is not a process, machine, manufacture or
composition of matter." (Final Act. 3 ( emphasis omitted).)
(2) Whether the Examiner erred in rejecting claims 1-19 under
35 U.S.C. § 101 as being directed to a judicial exception to statutory subject
matter ("abstract idea"), and thus, to patent-ineligible subject matter.
(3) Whether the Examiner erred in finding Reicher discloses
"detecting a clinical setting parameter, wherein the parameter value is set by
an act of an examining physician comprising initializing one of a plurality of
complementary clinical computer programs," and "eliminating elemental
clinical data fields as irrelevant to determination of a medical evaluation and
management code characterizing the physician-patient interaction based
upon input by the examining physician," as recited in independent claim 1.
( 4) Whether the Examiner erred in finding the combination of
Reicher and Rosenfeld teaches or suggests "assigning a medical evaluation
and management code according to quantified risk, physical examination,
and complexity of the physician-patient encounter," as recited in
independent claim 1.
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ANALYSIS
A. Section 101 Rejection-Computer Program Per Se (Claims 1-19)
The Examiner rejects claims 1-19 under 35 U.S.C. § 101, concluding
"the claimed invention is directed to non-statutory subject matter." (Final
Act. 3 (emphasis omitted).) In particular, the Examiner concludes "the
claims are directed to a computer program per se," and thus, are not directed
to one of the four statutory categories of patent eligible subject matter-
namely, "a process, machine, manufacture[,] or composition of matter." (Id.
( emphasis omitted).)
We agree. Although claim 1 references steps to be performed, it is
directed to "a co-operable set of computer programs" for performing the
method steps and not to the method itself. Therefore, claim 1 is not directed
to a process. Claim 1 also recites the set of computer programs comprises
instructions that, when executed by a "mobile computing device," carry out
the recited steps, but does not positively recite the device or that the
instructions are actually embodied in the device. Therefore, claim 1 is not
directed to a machine. Claim 1 also does not recite any tangible, non-
transitory or transitory, embodiment of the set of computer programs or
instructions, and thus, would encompass such a program and instructions in
the mind of a programmer. Therefore, claim 1 is not directed to an article of
manufacture or composition of matter. In short, we agree with the
Examiner's conclusion that claim 1 is directed to a "set of computer
programs" i.e., software per se, and is, accordingly, not patent-eligible.
Dependent claims 2-19 do not add any limitations that would cure this
deficiency.
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We, therefore, sustain the Examiner's rejection of claims 1-19 on this
ground, which Appellant does not address on appeal.
B. Section 101 Rejection-Abstract Idea (Claims 1-19)
The Examiner also rejects claims 1-19 under§ 101 as being directed
to patent-ineligible subject matter-that is, to a "judicial exception" to
statutory subject matter. (Final Act. 3-8.)
The Supreme Court has set forth an analytical "framework for
distinguishing patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible applications of those
concepts." Alice Corp. Pty. Ltd. v. CLS Bankint'l, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 71-73 (2012)). In the first step of the analysis, we determine
whether the claims at issue are "directed to" a judicial exception, such as an
abstract idea. Alice, 134 S. Ct. at 2355. If not, the inquiry ends. Thales
Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are
determined to be directed to an abstract idea, then we consider under step
two whether the claims contain an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
Noting that the two stages involve "overlapping scrutiny of the
content of the claims," the Federal Circuit has described "the first-stage
inquiry" as "looking at the 'focus' of the claims, their 'character as a
whole,"' and "the second-stage inquiry (where reached)" as "looking more
precisely at what the claim elements add-specifically, whether, in the
Supreme Court's terms, they identify an 'inventive concept' in the
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application of the ineligible matter to which (by assumption at stage two) the
claim is directed." Electric Power Group, LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016). In considering whether a claim is directed to
an abstract idea, we acknowledge, as did the Court in Mayo, that "all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology or are instead directed to a result or
effect that in itself is the abstract idea and merely invoke generic processes
and machinery. See Enfzsh, 822 F.3d at 1336.
Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept (Abstract Idea)
Appellant first asserts the Examiner has not made out a ''prima facie
case for finding an abstract idea." (Br. 7.) We disagree. In rejecting the
pending claims under § 101, the Examiner analyzed the claims using the
Mayo/Alice two-step framework, consistent with the guidance set forth in the
USPTO's "2014 Interim Guidance on Patent Subject Matter Eligibility," 79
Fed. Reg. 74618 (Dec. 16, 2014), in effect at the time the Final Office
Action was mailed. Specifically, the Examiner notified Appellant that
claims 1-19 are directed to the "abstract idea" of"[ d]etermining relevant
and irrelevant data fields pertaining to a medical evaluation and assigning
accurate medical evaluation and management codes describing a physician-
patient encounter based upon the received data." (Final Act. 4 ( emphasis
omitted).) The Examiner provided reasoning to support this conclusion,
stating that the claimed subject matter is directed to an abstract idea because
"it compares new and stored information and uses rules to identify options"
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(id. at 5 ( citing Smartgene )2 ( emphasis omitted)) and also because it
"organiz[es] information through mathematical correlations" (id. ( citing
Digitech) 3.) In so doing, the Examiner notified Appellant of the reasons for
the rejection "together with such information and references as may be
useful in judging of the propriety of continuing the prosecution of [the]
application." 35 U.S.C. § 132. We find, therefore, that the Examiner set
forth a prima facie case of patent-ineligibility.
Appellant argues the Examiner's rejection ignores elements of the
claims, and asserts the claimed invention is not abstract because it recites
steps that "[ c ]ollectively ... claim a specific and concrete process for
calculating an evaluation and management (E&M) code that is far more than
any abstract idea that it may embody." (Br. 8.) Appellant argues that
application of the abstract idea in the context of computer-automated
technique removes the claims from the realm of being directed to an abstract
idea. We disagree. As the Supreme Court has said, "'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) (quoting In re Richman, 563 F.2d
1026, 1030 (CCPA 1977)). In addition, the Supreme Court and the Federal
Circuit have repeatedly made clear that "merely limiting the field of use of
the abstract idea to a particular existing technological environment does not
render the claims any less abstract." Affinity Labs of Texas, LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016).
2 Smartgene, Inc. v. Adv. Biological Labs., S.A., 555 Fed. Appx. 950 (Fed.
Cir. 2014).
3 Digitech Image Techs., LLC v. Elecs.for Imaging, Inc., 758 F.3d 1344
(Fed. Cir. 2014).
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Appellant further argues "the claimed invention represents a
significant improvement over the prior art because it fuses electronic
medical charting with medical E&M coding in such a way as to carry out
both processes at once," which Appellant asserts "is unknown in the prior
art." (Br. 8.) To the extent Appellant maintains that the claimed subject
matter is not directed to an "abstract idea" because it is novel, Appellant
misapprehends the law. As the Federal Circuit has explained, a "'claim for a
new abstract idea is still an abstract idea.'" SAP Am., Inc. v. Investpic, LLC,
No. 2017-2081, 2018 WL 2207254, at *1 (Fed. Cir. May 15, 2018) (quoting
Synopsis, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016)). Although we disagree with Appellant's assertion of the claims'
novelty over the prior art (as discussed in the next section), even assuming
the technique claimed was "'innovative, or even brilliant,"' that would not
be enough for the claimed abstract idea to be patent eligible. See SAP
America, 2018 WL 2207254 at * 1.
As the Examiner concludes, and we agree, the claims here are
ineligible because they recite nothing but a series of steps of data selection
and gathering, manipulation of that data based on application of
mathematical rules, and presentation of the results. (Final Act. 4--5; Ans. 3-
4.) That is all abstract. See SAP America, 2018 WL 2207254 at *4; Electric
Power, 830 F.3d at 1354. In characterizing the claimed subject matter as
directed to an abstract idea, however, we do not discount Appellant's
argument that the claimed invention may provide many benefits. (See Br.
8.) But such an argument is based only on the notion that the particular
selection of data, and its analysis and presentation according to particular
rules, are useful in the claimed context, which is not exclusive of patent-
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ineligible subject matter. As many cases make clear, even if a process of
collecting and analyzing information is "limited to particular content" or a
particular "source," that limitation does not remove the collection and
analysis from the realm of the abstract. SAP America, 2018 WL 2207254 at
*4; Electric Power, 830 F.3d at 1353, 1355 (citing cases).
Also unpersuasive is Appellant's argument that the claimed invention
"improv[ es] the functioning of a computer" because it "makes efficient use
of computing resources." (Br. 8.) The focus of the claims is not on any
improved computer, but rather on the improved process of gathering and
manipulating relevant data to "assign[] medical evaluation and management
code [ s]." Appellant's Specification makes clear that off-the-shelf computer
technology (such as "a tablet computer or handheld device," without
technological restriction) is usable to carry out the claimed process. (Spec.
6:6-8.) The claims, therefore, fit into the familiar class of claims that do not
"focus ... on ... an improvement in computers as tools, but on certain
independently abstract ideas that use computers as tools." Electric Power,
830 F.3d at 1354. (See also Ans. 4--5: "[I]mproving the user experience of
a physician interacting with a computer is not improving the functioning of
the computing itself.")
In short, we have considered all of Appellant's arguments challenging
the characterization of the pending claims as being directed to abstract ideas,
but we do not find them to be persuasive of error. (Br. 7-9.) Rather, we
agree with the Examiner, at step one of the Alice analysis, that the claims are
directed to one or more abstract ideas. Accordingly, we tum to the second
step of the Alice analysis, in which we determine whether the additional
elements of the claims transform them into patent-eligible subject matter.
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Step Two: Whether Additional Elements Transform the Idea into
Patent-Eligible Subject Matter
Having found that the claims are directed to an abstract idea, the
Examiner also finds that the additional elements or combinations of
elements beyond the abstract idea do not amount to "significantly more"
than the abstract idea itself, but instead amount to no more than a recitation
of "[g]eneric computer structure ... that serves to perform generic computer
functions," and further finds the generic computer functions are "well-
understood, routine, and conventional activities previously known to the
pertinent industry." (Final Act. 5-6.)
Appellant's argument pertinent to step two appears to be only that
"the claimed invention makes efficient use of computing resources, thereby
improving the functioning of a computer." (Br. 8.) Appellant does not
expressly challenge the Examiner's finding that the recited computer
structure and functions are "well-understood, routine, and conventional." In
essence, Appellant's argument distills down to the notion that automating
the assignment of medical evaluation and management codes is patentable.
As the Supreme Court has explained, however, "the mere recitation of a
generic computer cannot transform a patent-ineligible abstract idea into a
patent-eligible invention." Alice Corp., 134 S. Ct. at 2358. Thus,
automating the assignment of medical evaluation and management codes
using a computer ( even based on the selection of particular data and analysis
of that data according to particular rules) does not transform Appellant's
claims into patent-eligible subject matter. (See also Ans. 4--5.)
Unlike the situation addressed in DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245 (Fed. Cir. 2014), for example, Appellant does not claim
to change how the underlying technology operates. Claim 1 calls for the
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computer programs to be "executable on at least a mobile computing device"
( emphasis added). As such, the claims recite only computer programs
without positively reciting a mobile computing device ( or any improvement
to it) as noted above. In addition, as also noted above, the Specification
describes only generic technology for executing the programs. (Spec. 6:5-
8.) Moreover, the Examiner finds the tasks recited in claim I-such as
detecting parameters (gathering data), determining data fields (manipulating
data and applying rules to data), rendering forms (generating user
interfaces), and recording orders (storing data}--are common computer
functions. (See Final Act. 6.) Appellant does not challenge this finding.
Thus, we agree with the Examiner's finding that the solution here is rooted
in routine use of conventional computer technology to carry out the claimed
abstract idea. (See id. at 6-7; see also Ans. 4--5.)
In that regard, we note that there is a fundamental difference between
computer functionality improvements, on the one hand, and uses of existing
computers as tools to perform a particular task, on the other. Indeed, the
Federal Circuit applied this distinction in Enfish in rejecting a§ 101
challenge because the claims at issue focused on a specific type of data
structure, i.e., a self-referential table for a computer database, designed to
improve the way a computer carries out its basic functions of storing and
retrieving data, and not merely on asserted advances in uses to which
existing computer capabilities could be put. Enfish, 822 F.3d at 1335-36.
We find no parallel here between the claims before us and the claims
in Enfish nor any comparable aspect in the claims before us that represents
"an improvement to computer functionality," i.e., an improvement in the
way a computer carries out its basic functions. Id. The alleged advantages
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that Appellant touts do not concern an improvement to computer
capabilities, but instead relate to an alleged improvement in selecting,
gathering, and manipulating data to assign medical evaluation and
management codes, for which a computer is used as a tool in its ordinary
capacity-that is, providing processing technology to execute computer
programs that, in tum, receive and manipulate the selected data. (See also
Ans. 4--5.)
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting independent claim 1 under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter, or in rejecting on the same basis dependent claims
2-19, which Appellant does not argue separately. (Br. 7.)
C. Section 103(a) Rejection (Claims 1-11, 15, and 16)
We have reviewed the Examiner's rejection under 35 U.S.C. § 103(a)
in light of Appellant's arguments the Examiner has erred. We disagree with
Appellant's conclusions and we adopt as our own the findings and reasons
set forth by the Examiner in the Final Action from which this appeal is taken
and as further elaborated in the Examiner's Answer in response to
Appellant's Appeal Brief. We concur with the conclusions reached by the
Examiner, and we highlight the following points for emphasis.
Claim 1, the sole independent claim, is deemed representative, as
Appellant does not argue any other claims separately. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (2016). The Examiner finds Reicher teaches the
limitations of claim 1 (Final Act. 8-10), except the Examiner finds "Reicher
does not expressly teach assigning a medical evaluation and management
code according to quantified risk, physical examination, and complexity of
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the physician-patient encounter," for which the Examiner relies on Reicher
in combination with Rosenfeld (id. at 10-11 ( emphasis omitted)).
Appellant argues the Examiner's findings regarding Reicher are in
error because "Reicher fails to teach the step of 'detecting a clinical setting
parameter.'" (Br. 9 ( emphasis omitted).) In particular, Appellant asserts
"[ w ]ith particular regard to 'clinical setting', this term has a very specific
meaning in the present application that is distinct from that of the cited art.
More specifically, a clinical setting, or clinical setting form, is a superset of a
clinical matter, or clinical matter form." (Id. at 9-10.) Appellant further
asserts:
The function of a clinical setting form is to make a first gross
reduction of data fields that are irrelevant to assigning a medical
E&M code. This first approximation is refined as the physician
continues to interact with the program by, for instance, selecting
a particular clinical matter form, and still further by supplying
input to the clinical matter form. Importantly, a physician is not
expected to respond to every field of a clinical setting form,
because its purpose is to provide for selection of particular
clinical matter forms.
(Id. at 10.)
We are not persuaded of error. First, we disagree with Appellant's
assertion that Appellant's Specification has provided "a very specific
meaning in the present application" of the claim term "clinical setting
parameter." Inventors may act as their own lexicographers, but any special
meaning assigned to a term "must be sufficiently clear in the specification
that any departure from common usage would be so understood by a person
of experience in the field of the invention." Multiform Desiccants, Inc. v.
Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer
v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008)
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("A patentee may act as its own lexicographer and assign to a term a unique
definition that is different from its ordinary and customary meaning;
however, a patentee must clearly express that intent in the written
description."). Absent an express intent to impart a novel meaning to a
claim term, the words take on the ordinary and customary meanings
attributed to them by those of ordinary skill in the art. Brookhill-Wilk 1,
LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed. Cir. 2003)
( citation omitted).
As the Examiner finds, and we agree, Appellant's Specification does
not provide any explicit definition of the term "clinical setting parameter."
(See Ans. 5---6 (emphasis omitted).) At most, in the portion of the
Specification cited by Appellant, the term "clinical matter" is used in
connection with describing types of examinations, such as "behavioral health
exam; an eye, ear, nose and throat exam; or a neurologic exam." (Spec.
7:18-20 (emphasis added).) Appellant's Specification also uses the term
"clinical setting" in describing the setting in which an examination is to take
place-such as "an outpatient, emergency, inpatient, long-term care, nursing
facility, or home healthcare setting." (Id. at 23:25-27 (emphasis added).)
Broadly but reasonably construed in light of Appellant's Specification, the
term "clinical setting" refers to the setting or location in which an
examination is taking place (such as outpatient or emergency), and the term
"clinical matter" refers to the type of examination (such as "behavioral
health" or "neurological").
We are not persuaded the Examiner erred in finding claim 1, broadly
but reasonably construed consistent with Appellant's Specification,
encompasses the teachings of Reicher with regard to the disputed limitations
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argued by Appellant: "detecting a clinical setting parameter" and
"eliminating elemental clinical data fields as irrelevant to determination of a
medical [code] based upon input by the examining physician." (See Br. 10.)
In essence, Appellant asserts that that the claimed features are different
because they are described in different terms, which is not persuasive of
Examiner error. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990)
( explaining that the comparison of references to the claimed invention "is
not an 'ipsissimis verbis' test"). Although Reicher does not use the specific
language recited in the claim ( e.g., "clinical setting parameter"), the
Examiner finds, and we agree, Reicher discloses the substance of the
limitations. In particular, the Examiner finds Reicher discloses the choice of
a medical examination form is dependent "upon different parameters
including scanner used for an imaging scan and referring physician attributes
.... " (Final Act. 9 ( citing Reicher ,r,r 26, 39).) We agree. Reicher
discloses:
The choice of which medical examination form to use for a
particular situation may be manual or automatic and may be
based on many different parameters. For a particular medical
examination, there may be none, one, or more than one
examination forms created. The choice of a medical
examination form may be based on one or more of medical
imaging modality, examination type, clinical history of the
patient, demographic information about the patient, prior
examinations, facility at which an exam is conducted, the type
of scanner used for an imaging scan, the type of insurance a
patient holds, the location of the patient, whether the patient
inpatient or outpatient, indications for the examination,
referring physician, referring physician attributes ( such as
specialty) and/or the requested reading physician ( or reading
physician attributes).
(Reicher ,r 26 (emphases added).) Reicher further discloses "[i]n some
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embodiments, how a medical examination form 170 appears to a user may
be predefined based on a series of rules that takes into account various
attributes of the user, patient, exam, modality, location, etc." (Id. ,r 41
( emphases added).)
Thus, Reicher teaches the disputed claim limitations by disclosing
automatically and dynamically creating examination forms based on the
"location" of the examination ( which, consistent with the Specification, is
within the scope of the claimed "clinical setting"), as well as the type of
examination being performed ( which, consistent with the Specification, is
within the scope of the claimed "clinical matter").
Appellant also argues the Examiner's rejection is in error because
"[t]he combination of Reicher and Rosenfeld fails to teach or suggest a
computer program that uses physician examination inputs to generate a
medical evaluation and management code." (Br. 10 (emphasis omitted).) In
particular, Appellant asserts "[ w ]hile the cited art may disclose methods for
generating and using medical examination forms, and determining medical
codes, it does not teach or suggest methodology for fusing medical
examination charting and coding into a single unified process." (Id.)
We are not persuaded of Examiner error. Appellant's argument does
not address the Examiner's findings based on the combined teachings of
Reicher and Rosenfeld, which we agree are supported by the cited teachings.
(See Final Act. 10-11.) Rather, Appellant's argument amounts to merely
characterizing Appellant's invention as a "very significant advancement,"
followed by the conclusory statement that "the cited art lacks a unified
process as claimed by the Applicant .... " (Br. 10.) Such conclusory
attorney assertions have little or no value in identifying the Examiner's
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alleged error, and, consequently, have little persuasive value. See 37 C.F.R.
§ 4I.37(c)(iv) (2016) ("A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011).
For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 103(a) rejection of independent claim 1, or of
dependent claims 2-11, 15, and 16, which are argued collectively with claim
1. (Br. 9.) We, therefore, sustain the rejection of claims 1-11, 15, and 16 on
this ground.
DECISION
The Examiner's 35 U.S.C. § 101 rejections of claims 1-19 are
affirmed.
The Examiner's 35 U.S.C. § 103(a) rejection of claims 1-11, 15, and
16 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)(l)(iv).
AFFIRMED
18