Ex Parte Dussia

Board of Patent Appeals and Interferences

Mar 31, 2008

09616276 (B.P.A.I. Mar. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte EVAN E. DUSSIA
____________

Appeal 2007-2564
Application 09/616,276
Technology Center 3600
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Decided: March 31, 2008
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Before MURRIEL E. CRAWFORD, HUBERT C. LORIN, and
JOSEPH A. FISCHETTI, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Evan E. Dussia (Appellant) seeks our review under 35 U.S.C. § 134 of the
final rejection of claims 1-4 and 6-24. Claim 5 has been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b) (2002).

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SUMMARY OF DECISION
We AFFIRM. 1
THE INVENTION
The Appellant’s claimed invention is directed to a computerized method and
system for obtaining, storing, and accessing medical records.
Claims 1, 2, and 12 reproduced below, are illustrative of the subject matter
on appeal.
1. A medical health record storage and
retrieval system comprising:
an extraction module operable to extract a patient’s
diagnosis and treatment information from respective
progress notes of a physician;
a storage module configured to store the extracted
diagnosis and treatment information in a logically
connected database; and
a server configured to allow web-enabled data
sharing access to the stored database by authorized users
using a remote or local web-enabled device.
2. A computerized method for managing
respective health records of a plurality of patients, said
method comprising:
uploading a progress note of a respective patient,
said progress note comprising data relative to an
encounter between a respective physician and the
respective patient;

1 Our decision will make reference to Appellant’s Appeal Brief (“Br.,” filed Aug.
17, 2005) and the Examiner’s Answer (“Answer,” mailed Mar. 6, 2006).
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identifying on said progress note respective
parameters selectable by the respective physician;
storing said progress note with said identified
parameters in a database accessible to a plurality of
authorized users; and
populating said database with respective progress
notes and respective identified parameters resulting from
further encounters between the respective patient and any
respective physician so as to create a historical set of
progress notes with identified parameters for that
respective patient, the set of historical progress notes
being interconnectable based on one or more logic
operators.
12. A computer readable medium encoded with
computer code for managing respective health records of
a plurality of patients, the program code causing a
computer to execute a method comprising:
uploading a progress note of a respective patient,
said progress note comprising data relative to an
encounter between a respective physician and the
respective patient;
identifying on said progress note respective
parameters selectable by the respective physician;
storing said progress note with said identified
parameters in a database accessible to a plurality of
authorized users; and
populating said database with respective progress
notes and respective identified parameters resulting from
further encounters between the respective patient and any
respective physician so as to create a historical set of
progress notes with identified parameters for that
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respective patient, the set of historical progress notes
being interconnectable based on one or more logic
operators.

THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
Lavin
Iliff
Evans
Walker
US 5,772,585
US 6,206,829 B1
US 6,347,329 B1
US 5,949,875
Jun. 30, 1998
Mar. 27, 2001
Feb. 12, 2002
Sep. 7, 1999
The following rejections are before us for review:
1. Claims 1 and 22-24 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Lavin and Iliff.
2. Claims 2-4, 6-8, 10-17, and 19-20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lavin and Evans.
3. Claims 9 and 18 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Lavin, Evans, and Walker.
4. Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over Lavin,
Iliff, and Walker.

ISSUES
The first issue before us is whether the Appellant has shown that the
Examiner erred in rejecting claims 1 and 22-24 as unpatentable over Lavin and
Iliff.
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The second issue before us is whether the Appellant has shown that the
Examiner erred in rejecting claims 2-4, 6-8, 10-17, and 19-20 as unpatentable over
Lavin and Evans.
The third issue before us is whether the Appellant has shown that the
Examiner erred in rejecting claims 9 and 18 as unpatentable over Lavin, Evans,
and Walker.
The fourth issue before us is whether the Appellant has shown that the
Examiner erred in rejecting claim 21 as unpatentable over Lavin, Iliff, and Walker.

FINDINGS OF FACT
We find that the following enumerated findings are supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed.
Cir. 1988) (explaining the general evidentiary standard for proceedings before the
Office).
The scope and content of the prior art
1. Lavin is directed to a system for managing patient medical information.
2. Iliff is directed to a system for providing computerized, knowledge-based
medical diagnostic and treatment advice.
3. Evans is directed to a medical records system for creating and
maintaining patient data electronically.
4. Walker is directed to a billing and collection system.
Any differences between the claimed subject matter and the prior art
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5. The prior art does not disclose or suggest “historical progress notes being
interconnectable based on one or more logic operators” (claims 2 and
12).
The level of skill in the art
6. Neither the Examiner nor Appellants has addressed the level of ordinary
skill in the pertinent art of computerized management of records. We will
therefore consider the cited prior art as representative of the level of
ordinary skill in the art. See Okajima v. Bourdeau, 261 F.3d 1350, 1355
(Fed. Cir. 2001) (“[T]he absence of specific findings on the level of skill
in the art does not give rise to reversible error ‘where the prior art itself
reflects an appropriate level and a need for testimony is not shown’”)
(quoting Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d
158, 163 (Fed. Cir. 1985).
Secondary considerations
7. There is no evidence on record of secondary considerations of non-
obviousness for our consideration.

PRINCIPLES OF LAW
“Section 103 forbids issuance of a patent when ‘the differences between the
subject matter sought to be patented and the prior art are such that the subject
matter as a whole would have been obvious at the time the invention was made to a
person having ordinary skill in the art to which said subject matter pertains.’” KSR
Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734 (2007). The question of
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obviousness is resolved on the basis of underlying factual determinations including
(1) the scope and content of the prior art, (2) any differences between the claimed
subject matter and the prior art, and (3) the level of skill in the art. Graham v. John
Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 127 S.Ct. at 1734 (“While the
sequence of these questions might be reordered in any particular case, the
[Graham] factors continue to define the inquiry that controls.”) The Court in
Graham further noted that evidence of secondary considerations “might be utilized
to give light to the circumstances surrounding the origin of the subject matter
sought to be patented.” 383 U.S. at 18.

ANALYSIS
Rejection of claims 1 and 22-24 as unpatentable over Lavin and Iliff.
The Appellant argues claims 1 and 22-24 as a group (Br. 5-7). We select
claim 1 (see supra) as the representative claim for this group, and the remaining
claims 22-24 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii) (2007).
The Examiner argues that Lavin discloses all the claimed features but for the
claimed limitation “server configured to allow web-enabled data sharing access to
the stored database by authorized users using a remote or local web-enabled
device,” for which Iliff is relied upon. The Examiner specifically relied upon “col.
73, lines 1-67 to col. 74, line 67” (Final Rejection 3 and Answer 4) of Iliff as
evidence to show it was known for a “user [to] utilize[ ] a network access
processor or computer to access the network so that medical diagnostic scripts can
be executed on a script engine to generate medical advice or a diagnosis.” (Answer
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4). The Examiner determined that “[i]t would have been obvious to one of
ordinary skill in the art at the time of the invention to have included the feature of
Iliff within the teaching of Lavin with the motivation of providing a MDATA
system which utilizes communication networks, such as the Internet, to connect a
user or patient with the MDATA computer.”
The Appellant does not appear to have rebutted the Examiner’s articulated
reasoning. Rather, the Appellant focuses on Iliff, and especially on the disclosure
at (col. 4, ll. 46-58), to argue that the prior art does not teach web-enabled data
sharing. (Br. 6). However, the Examiner relied instead on (col. 73, ll. 25-30), of
Iliff. Consistent with the Examiner’s characterization, (col. 73, ll. 25-30) of Iliff
does disclose communicating to a MDATA (i.e., a database, see col. 68, l. 10)
server with a wireless portable computer. Accordingly, the Appellant has not
shown error in the rejection with this argument.
The Appellant also argues that Lavin does not show the extraction
limitation. (Br. 6). The Examiner directs attention to, for example, Fig 24. Fig. 24
shows relationships whereby a variety of types of information may be retrieved,
including information taken from progress notes. (See Lavin, col. 15, l. 39).
Accordingly, we are satisfied that the Examiner has established that Lavin
discloses the extraction limitation of the claim. Accordingly, the Appellant has not
shown error in the rejection with this argument.

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Rejection of claims 2-4, 6-8, 10-17, and 19-20 as unpatentable over Lavin and
Evans.
We will not sustain this rejection.
The Examiner argues that Lavin discloses all the claimed features but for
“populating said database with respective progress notes and respective identified
parameters resulting from further encounters between the respective patient and
any respective physician so as to create a historical set of progress notes with
identified parameters for that respective patient,” for which Evans was relied upon.
The Examiner relied upon col. 7, lines 46-67 to col. 8, line 65; col. 12, lines 3-67.
(Final Rejection 5 and Answer 6). The Appellant argues that Evans “merely
discloses a data structure with pointers for storing patient information based on a
patient identifier. See, for example, Evans, Column 8, lines 35-65. The applicant
submits that the data structure as disclosed in Evans is different from “set of
historical progress notes being interconnectable based on one or more logic
operators” [claim 2].” (Br. 8).
We commend the Examiner for the detailed analysis of the subject matter
set forth in the independent and dependent claims. However, after carefully
reviewing Evans, especially the passages the Examiner relied upon in reaching the
determination of obviousness, we agree with the Appellant that the prior art does
not disclose or suggest “historical progress notes being interconnectable based on
one or more logic operators.” The passages in Evans that the Examiner relied upon
describe “data structures [which] include patient data captured by … progress
notes … [and] pointers to data structures … .” (Evans, col. 8, ll. 46-50). We do not
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see there any disclosure or suggestion of logic operators with which to interconnect
the progress notes. Accordingly, we find the Appellant’s argument persuasive as
to error.

Rejection of claims 9 and 18 as unpatentable over Lavin, Evans, and Walker.
Claims 9 and 18 depend from claim 2. For the same reasons we found the
Appellant’s argument persuasive as to error in the rejection of claims 2-4, 6-8, 10-
17, and 19-20, we find it persuasive as to error in the rejection of claims 9 and 18.

Rejection of claim 21 as unpatentable over Lavin, Iliff, and Walker.
Claim 21 further includes the limitation “means for … allocating fees among
entities associated with the respective medical diagnosis and treatment information
accessed by respective users.”
In the Final Rejection (p. 11, repeated in the Answer at 11), the Examiner
stated that “this feature is known in the art, as evidenced by Walker.” Specifically,
the Examiner directed attention to (col. 3, ll. 5-67 to col. 4, l. 8).
The Appellant argued that “nowhere does Walker appear to suggest or
describe allocating fees among entities associated with the data itself.” (Br. 11).
In responding to the Brief, the Examiner directed further to (col. 9, ll. 29-40
and col. 16, ll. 1-16), of Walker. The Examiner quoted from Walker the following
statement: “[t]he diagnoses and procedures may be listed and recorded using
customized or automatic codes to aid the billing process” (col. 9, ll. 38-40).
(Answer 20).
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We agree with the Examiner. The indicated statement in Walker would
suggest allocating fees among entities associated with the respective medical
diagnosis and treatment information. That Walker discloses treatment listed using
codes to aid the billing process, suggests a means by which fees for the separately
listed treatments are allocating among the billable entities. Although “allocating
fees” is not expressly disclosed in Walker that is in effect the result one of ordinary
skill would expect from performing the Walker procedure. “A person of ordinary
skill is also a person of ordinary creativity, not an automaton.” KSR, 127 S.Ct. at
1742.
The Appellant also repeats arguments that were presented in rebuttal to the
rejection of claim 1. We found them unpersuasive as to the rejection of claim 1
and find them equally unpersuasive as to error in the rejection of claim 21.

CONCLUSIONS OF LAW
We conclude the Appellant has failed to show that the Examiner erred in
rejecting claims 1 and 22-24 as unpatentable over Lavin and Iliff, and claim 21 as
unpatentable over Lavin, Iliff, and Walker.
We conclude the Appellant has shown that the Examiner erred in rejecting
claims 2-4, 6-8, 10-17, and 19-20 as unpatentable over Lavin and Evans, and
claims 9 and 18 as unpatentable over Lavin, Evans, and Walker.

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DECISION
The decision of the Examiner to reject claims 1-4 and 6-24 is affirmed-in-
part.
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) (2007).

AFFIRMED-IN-PART

JRG

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