Ex Parte De Vries et al

Patent Trial and Appeal Board

Nov 30, 2018

14105633 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/105,633 12/13/2013 Jan Johannes Gerardus De Vries
24737 7590 12/04/2018
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus A venue
Suite 340
Valhalla, NY 10595
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.
2012P00534US 3668
EXAMINER
AUGUSTINE, VICTORIA PEARL
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
12/04/2018 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):
patti. demichele@Philips.com
marianne.fox@philips.com
katelyn.mulroy@philips.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAN JOHANNES GERARDUS DE VRIES,
ALEKSANDRA TESANOVIC, and GIJS GELEIJNSE
Appeal2017-008406
Application 14/105,633 1
Technology Center 3600
Before JOHN A. JEFFERY, JENNIFER L. McKEOWN, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-7 and 9-21. Appellants canceled claim 8. See Final Act. 2. We
have jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify Koninklijke Philips N.V. as the real party in interest.
App. Br. 1.
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Application 14/105,633
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention generally relates to
determining an optimal time to discharge a patient from a medical facility.
See Spec. 2: 16-18, Abstract. In a disclosed embodiment, the health score of
a patient may be calculated based on samples of patient data and when
provided with a plurality of samples, a health score curve can be determined
for the patient. Spec. 7:29-34. Additionally, Appellants describe comparing
a patient's health score curve to a reference curve to determine a
recommended moment of discharge (e.g., if the difference is small, the
moment of discharge may be relatively soon). Spec. 4: 12-28. According to
the Specification, a curve shape that indicates a patient stabilization over
time, "in particular a curve ... that saturates or converges to an end value,"
is suitable. Spec. 5:18-20. Thus, for a reference curve, when the curve has
reached a saturation threshold, this indicates a moment in time when the
reference curve has saturated enough for patient discharge. Spec. 7: 10-13.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A clinical support system comprising a processor and a
non-transitory computer-readable storage medium, wherein the
computer-readable storage medium contains instructions for
execution by the processor, wherein the instructions cause the
processor to perform the steps of:
obtaining a health score curve over time of a patient, for
whom a recommendation for a moment of discharge from a
medical facility shall be provided,
obtaining a reference curve to the health score curve,
wherein said reference curve indicates a patient stabilization over
time,
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computing a difference between the health score curve and
said reference curve, and
computing a recommended moment of discharge from the
medical facility based on the difference between said health
score curve and said reference curve,
wherein computing a recommended moment of discharge
from the medical facility includes calculating a moment of
saturation, when the reference curve has reached a saturation
threshold, the saturation threshold indicating a moment in time
when reference curve has saturated enough for patient
discharge.
The Examiner's Rejections
1. Claims 1-7 and 9-21 stand rejected under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter. Final Act. 2-3.
2. Claims 1-7 and 9-21 stand rejected under pre-AIA 35 U.S.C.
§ I03(a) as being unpatentable over Rothman et al. (US 2009/0105550 Al;
Apr. 23, 2009) ("Rothman") and Rognin et al. (US 2012/0237098 Al;
Sept. 20, 2012) ("Rognin"). Final Act. 5-21.
ANALYSIS 2
Rejection under 35 U.S.C. § 1 OJ
Appellants dispute the Examiner's conclusion that the pending claims
are directed to patent-ineligible subject matter. App. Br. 8-11; Reply Br. 3-
7. In particular, Appellants argue the Examiner failed to consider all of the
2 Throughout this Decision, we have considered the Appeal Brief, filed
November 21, 2016 ("App. Br."); the Reply Brief, filed May 18, 2017
("Reply Br."); the Examiner's Answer, mailed March 20, 2017 ("Ans.");
and the Final Office Action, mailed July 1, 2016 ("Final Act."), from which
this Appeal is taken.
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claim limitations and, thus, erred in concluding the claims are directed to an
abstract idea. App. Br. 9-11. Rather, Appellants assert the claims are
directed to computing a moment of discharge for a patient from a medical
facility (independent claims 1, 15, and 16) or generating vital sign
information (independent claims 12 and 13), both of which, Appellants
assert, are not abstract ideas. App. Br. 10. Further, Appellants argue the
claims recite "a specific implementation of a solution to a problem." App.
Br. 11. Moreover, Appellants contend the claims recite significantly more
than the alleged abstract idea. App. Br. 11; Reply Br. 5-7.
The Supreme Court's two-step framework guides our analysis of
patent eligibility under 35 U.S.C. § 101. Alice Corp. Pty. Ltd. v. CLS Bank
Int'!, 134 S. Ct. 2347, 2355 (2014). If a claim falls within one of the
statutory categories of patent eligibility (i.e., a process, machine,
manufacture, or composition of matter) then the first inquiry is whether the
claim is directed to one of the judicially recognized exceptions (i.e., a law of
nature, a natural phenomenon, or an abstract idea). Alice, 134 S. Ct. at 2355.
If so, the second step is to determine whether any element, or combination of
elements, amounts to significantly more than the judicial exception. Alice,
134 S. Ct. at 2355.
Although the independent claims each broadly fall within the statutory
categories of patentability, the Examiner concludes the claims are directed to
a judicially recognized exception-i.e., an abstract idea. Final Act. 2-3. In
particular, the Examiner concludes the claims are directed to the abstract
idea of "analyzing patient data and recommending discharge." Final Act. 2-
3 ( emphasis omitted). Further, the Examiner concludes the claims do not
recite significantly more to transform the abstract idea into a patent eligible
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application. Final Act. 3. Instead, the Examiner finds the claims recite
generic computer functions/elements performing generic computer functions
that are well-understood, routine, and conventional. Final Act. 3.
Instead of using a definition of an abstract idea, "the decisional
mechanism courts now apply is to examine earlier cases in which a similar
or parallel descriptive nature can be seen-what prior cases were about, and
which way they were decided." Amdocs (Isr.) Ltd. v. Openet Telecom, Inc.,
841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)); accord United
States Patent and Trademark Office, JULY 2015 UPDATE: SUBJECT MATTER
ELIGIBILITY 3 (July 30, 2015), https://www.uspto.gov/sites/default/files/
documents/ieg-july-2015-update.pdf (instructing Examiners that "a claimed
concept is not identified as an abstract idea unless it is similar to at least one
concept that the courts have identified as an abstract idea."). As part of this
inquiry, we must "look at the 'focus of the claimed advance over the prior
art' to determine if the claim's 'character as a whole' is directed to excluded
subject matter." Affinity Labs of Tex., LLC v. DirecTV, LLC, 838 F.3d 1253,
1257-58 (Fed. Cir. 2016) (internal citations omitted).
Our reviewing court has concluded that abstract ideas include the
concepts such as the collection and analysis of information. Elec. Power,
830 F.3d at 1353. Additionally, the collecting of data, recognizing certain
data within the collected data set, and storing the data in memory are also
abstract ideas. Content Extraction & Transmission LLC v. Wells Fargo
Bank, N.A., 776 F.3d 1343, 1347 (Fed. Cir. 2014). Similarly, "collecting,
displaying, and manipulating data" is an abstract idea. Intellectual Ventures
I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017); see
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also SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018)
("merely presenting the results of abstract processes of collecting and
analyzing information ... is abstract as an ancillary part of such collection
and analysis") (internal citation and quotations omitted). Moreover, "a
process of organizing information through mathematical correlations and is
not tied to a specific structure or machine" is abstract. Digitech Image
Techs., LLC v. Elec.for Imaging, Inc., 758 F.3d 1344, 1350 (Fed. Cir.
2014).
Further, merely combining several abstract ideas does not render the
combination any less abstract. RecogniCorp, LLC v. Nintendo Co. Ltd., 855
F.3d 1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea (math) to
another abstract idea ... does not render the claim non-abstract."); see also
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed.
Cir. 2016) ( determining the pending claims were directed to a combination
of abstract ideas).
Here, Appellants' claims are generally directed to computing a
recommended moment of discharge from a medical facility. This is
consistent with how Appellants summarize the disclosed and claimed
invention. See Spec. 2: 17-18. To compute the recommended moment of
discharge, the claims recite obtaining certain information ( e.g., a health
score curve of the patient and a reference curve), performing various
computations on the obtained information ( e.g., computing a difference), and
recognizing certain information from the obtained and computed
information ( e.g., calculating a moment of saturation). It cannot be disputed
that patients are discharged from medical facilities every day. As Appellants
acknowledge in the Background section of the Specification, determining an
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"optimal point in time" for discharge is critical to balance the concerns of
treatment expenses, resource utilization, and the likelihood of readmission,
to name but a few. Spec. 1:9-16. Appellants acknowledge it is known to
use various models to predict a patient's length of stay (LOS). Spec. 1: 17-
28. Further, it is known to generate a health score of a patient, plot the
health scores over a period of time to generate a health score curve, and for a
clinician to compare the generated health score curve with a standard health
score curve to determine a moment of discharge. Spec. 2: 1-7.
Similar to the collection and analysis of data in Electric Power, the
pending claims obtain ( collect) health score curves ( or data to generate a
health score curve) and reference curves and perform an analysis on the
obtained information to make a determination (i.e., a recommended time of
discharge). See Elec. Power, 830 F.3d at 1354; see also HealthTrio LLC v.
Aetna, Inc., 673 F. App'x 1006 (mem.) (Fed. Cir. 2017) (affirming district
court decision holding "collection of data from various sources with the goal
of compiling a single, comprehensive, patient health record" is patent
ineligible). Additionally, "computing a recommended moment of discharge
... includ[ing] calculating a moment of saturation, when the reference curve
has reached a saturation threshold" is similar to the type of analysis and
recognition of data determined to be abstract. See Elec. Power, 830 F.3d at
1354 ("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"); Content Extraction, 776 F.3d at 1347;
Intellectual Ventures, 850 F.3d at 1340.
Additional recited claim limitations detail different computations to be
performed on the obtained information. Examples of these computations
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include: scaling the difference between the patient's health score curve and
the reference curve ( claim 2); computing the difference between the two
curves as a function of area between the curves (claim 3); using curve fitting
techniques to obtain reference curve information ( claim 4); computing a
difference between the two curves over a portion of the curves (claim 5);
finding local minima and maxima of the health score curve ( claim 6);
finding zero-crossings of a curve indicative of the difference between the
health score curve and reference curve ( claim 7); obtaining samples of
patient data to calculate a health score further using modelling data ( claims
10 and 11 ); and displaying at least one of the health score curve, the
reference curve, and the discharge time ( claim 16). None of these
limitations alters the character of the claims, which is directed to an abstract
idea, discussed supra. Additionally, here-as in Electric Power (see 830
F.3d at 1354}-the claims are distinguishable from the claims at issue in
Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016) because "the
focus of the claims is not on ... an improvement in computers as tools, but
on certain independently abstract ideas that use computers as tools." Elec.
Power, 830 F.3d at 1354.
Because we determine the claims are directed to an abstract idea or
combination of abstract ideas, we analyze the claims under step two of Alice
to determine if there are additional limitations that individually, or as an
ordered combination, ensure the claims amount to "significantly more" than
the abstract idea. Alice, 134 S. Ct. at 2355 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72-73, 77-79 (2012)). The
implementation of the abstract idea involved must be "more than [the]
performance of 'well-understood, routine, [and] conventional activities
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previously known to the industry."' Content Extraction, 776 F.3d at 1347-
48 (quoting Alice, 134 S. Ct. at 2359) (alteration in original).
Appellants generally assert the claims "set forth something
significantly more," but fail to specifically identify what that is.
App. Br. 11. Moreover, Appellants argue obtaining health curves and
calculating a recommended moment of discharge "cannot be performed
without the help of computer technology, and would require specific
processes and programs to analyze the obtained data and perform
calculations based thereon. Thus, 'common sense' dictates that the claims
are directed to 'significantly more' than an abstract idea." Reply Br. 5.
As an initial matter, Appellants appear to conflate the two steps of the
Alice patent eligibility framework. See Alice, 134 S. Ct. at 2355. As
discussed above, under step one of the Alice framework, we conclude the
claims to be directed to computing a recommended moment of discharge
from a medical facility-an abstract idea of collecting, analyzing, and
organizing information through mathematical correlations. See Digitech,
758 F.3d at 1350. Further, under step two of the Alice framework, we agree
with the Examiner (see Final Act. 3; Ans. 5) that the independent claims do
not recite significantly more than the abstract idea itself. Further, as
discussed above, the limitations of the dependent claims do not amount to
more than the abstract idea either. As the Examiner notes, the additional
limitations merely recite functions that were well-known, routine, and
conventional in the industry. Ans. 5; see also Spec. 1:8-2:14 (Background).
Additionally, "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).
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For the reasons discussed supra, we are unpersuaded that the
Examiner erred in rejecting under 35 U.S.C. § 101 claim 1 as being directed
to patent-ineligible subject matter. Accordingly, we sustain the Examiner's
rejection of claim 1. Additionally, we sustain the Examiner's rejection of
independent claims 12, 13, 15, and 16, which recite similar limitations and
were not argued separately. See 37 C.F.R. § 4I.37(c)(l)(iv) (2016). Further,
we sustain the Examiner's rejection of claims 2-7, 9-11, 14, and 17-21,
which depend directly or indirectly therefrom and were not argued
separately. See 37 C.F.R. § 4I.37(c)(l)(iv).
Rejection under pre-AJA 35 U.S.C. § 103(a)
Appellants assert Rothman, as relied on by the Examiner, fails to
teach "calculating a moment of saturation, when the reference curve has
reached a saturation threshold, the saturation threshold indicating a moment
in time when [the] reference curve has saturated enough for patient
discharge." App. Br. 13-14; Reply Br. 7-8. Appellants acknowledge
Rothman describes using a health score to predict a length of stay for a
patient, Appellants argue Rothman does not disclose calculating a moment
of saturation based on the difference between a health score curve and a
reference curve. App. Br. 14. Specifically, Appellants assert Rothman
"does not disclose calculating a moment of saturation at all." App. Br. 14.
In response, the Examiner finds: "A moment of saturation is a term of
art in mathematics describing when two curves match. This is a standard
feature of health curves." Ans. 7. Additionally, the Examiner explains
Rothman teaches predicting patient discharge using curves and, therefore,
"implicitly this [ (patient discharge time)] is predicted using a moment of
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saturation because that is when the patient curve is predicted to match a
reference curve." Ans. 7.
Appellants dispute the Examiner's explanation that a moment of
saturation is a term of art in mathematics. Reply Br. 7-8. Rather, as
described in the Specification, Appellants contend the concept of saturation
relates to when a curve converges to an end value. Reply Br. 8 ( citing
Spec. 5: 18-19). Additionally, Appellants note the Specification provides an
example health score curve in Figure 1 and describes a point on the curve
(t=t4) when the health score curve "flattens and starts to saturate." Reply
Br. 7-8 (quoting Spec. 9: 11-13, emphasis omitted). Appellants further note,
there is only one curve illustrated in Figure I-thus, challenging the
Examiner's definition that the moment of saturation is when two curves
match. Reply Br. 8. Thus, Appellants contend "the moment of saturation of
the present claims involves more than simply determining when two curves
match." Reply Br. 8.
When construing claim terminology during prosecution before the
Office, claims are to be given their broadest reasonable interpretation
consistent with the Specification, reading claim language in light of the
Specification as it would be interpreted by one of ordinary skill in the art.
In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
However, the broadest reasonable interpretation differs from the broadest
possible interpretation. In re Smith Int'!, Inc., 871 F.3d 1375, 1383 (Fed.
Cir. 2017). The correct inquiry in giving a claim term its broadest
reasonable interpretation in light of the specification is "an interpretation
that corresponds with what and how the inventor describes his invention in
the specification, i.e., an interpretation that is 'consistent with the
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specification."' Smith, 871 F.3d at 1382-83 (quoting In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997) ). Additionally, we are mindful that limitations
are not to be read into the claims from the Specification. In re Van Geuns,
988 F.2d 1181, 1184 (Fed. Cir. 1993).
Here, we agree with Appellants that, in light of the Specification, a
moment of saturation of a curve is when the curve begins to flatten and
converges to an end value. See, e.g., Spec. 5: 18-20. Also, the Examiner
provides no evidence or support for an interpretation that a moment of
saturation is a term of art in mathematics or that it is defined by when two
curves match.
Rothman is generally directed to providing a health score for a patient.
Rothman ,r,r 2, 10, Title. Rothman also describes the health score may be
continually plotted and displayed (i.e., a health score curve) to chart a
patient's progress. Rothman ,r 31. Rothman describes using the disclosed
"Health Score arrangement" to predict an expected length of stay (ELOS) of
a patient in a medical facility. Rothman ,r 39. Further, a patient's Health
Score may be compared to a standard recovery curve to determine resource
needs (i.e., staffing) or discharges. Rothman ,r,r 35, 41--42.
However, the Examiner has not identified within Rothman, nor
provided persuasive technical reasoning, that Rothman teaches or reasonably
suggests calculating a moment of saturation-i.e., when the standard curve
( or reference curve) begins to flatten and converges to an end value-to
predict a discharge time (i.e., compute a recommended moment of
discharge). Instead, Rothman suggests the using a comparison of a patient's
health score curve to a standard curve as part to predict patient discharge,
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but, on this record, it is not evident that such a comparison calculates or
otherwise determines a moment of saturation of the standard curve.
Because we find it dispositive that Rothman, as relied on by the
Examiner, does not teach calculating a moment of saturation of the standard
(reference) curve, as required by independent claims 1, 12, 13, 15, and 16,
we need not address other issues raised by Appellants' arguments.
For the reasons discussed supra, and constrained by the record before
us, we do not sustain the Examiner's rejection of independent claim 1. For
similar reasons we do not sustain the Examiner's rejection of independent
claims 12, 13, 15, and 16, which recite similar limitations. Additionally, we
do not sustain the Examiner's rejection of claims 2-7, 9-11, 14, and 17-21,
which depend directly or indirectly therefrom.
DECISION
We affirm the Examiner's decision rejecting claims 1-7 and 9-21
under 35 U.S.C. § 101.
We reverse the Examiner's decision rejecting claims 1-7 and 9-21
under pre-AIA 35 U.S.C. § 103(a).
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner's decision rejecting claims 1-7 and
9-21 is affirmed. See 37 C.F.R. § 4I.50(a)(l).
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). See
37 C.F.R. § 41.50(±).
AFFIRMED
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