Ex Parte GhouriDownload PDFPatent Trial and Appeal BoardJul 25, 201611957387 (P.T.A.B. Jul. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111957,387 12/14/2007 8698 7590 07/27/2016 STANDLEY LAW GROUP LLP 6300 Riverside Drive Dublin, OH 43017 FIRST NAMED INVENTOR Ahmed Ghouri 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. HUM2027-202 9239 EXAMINER PATEL,NEHA ART UNIT PAPER NUMBER 3686 NOTIFICATION DATE DELIVERY MODE 07/27/2016 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): s tandleydocketing@standley llp .com PTOL-90A (Rev. 04/07) lJNITEu STATES PATENT ANu TRAuEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte AHMED GHOURI Appeal2014--001670 Application 11/957,387 Technology Center 3600 Before ANTON W. PETTING, BIBHU R. MOHANTY, and BRADLEY B. BAY AT, Administrative Patent Judges. PETTING, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Ahmed Ghouri (Appellant) seeks review under 35 U.S.C. § 134 of a final rejection of claims 1-20, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellant invented a way of managing healthcare information. Specification 1: 6-9. 1 Our decision will make reference to the Appellant's Appeal Brief ("App. Br.," filed August 15, 2013) and Reply Brief ("Reply Br.," filed October 25, 2013), and the Examiner's Answer ("Ans.," mailed September 12, 2013), and Final Action ("Final Act.," mailed June 7, 2012). Appeal2014-001670 Application 11/957,387 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. A system for pay for performance for care of a patient by one or more physician who care for the patient, the system comprising: [ 1] a health record containing information about a patient, one or more physicians associated with the patient and a medical history of the patient; [2] a pay for performance gateway having a nlles matrix with a plurality of guidelines wherein each guideline associates a care option for care of a patient with a pay for performance incentive and generator unit that generates a patient specific guideline list for the one or more physicians associated with a particular patient based on the medical history of the particular patient and rules matrix, each patient specific guideline list contains one or more care options for the specific patient and 2 Appeal2014-001670 Application 11/957,387 and the pay for performance incentive for each of the one or more care options for the specific patient; [3] one or more physician units, wherein each physician unit has a pay for performance unit that is configured to display the patient specific guideline list for the particular patient and permit the physician to indicate that the care option contained in the patient specific guideline list has been performed wherein the physician is incentivized to provide the care option based on the pay for performance incentive. The Examiner relies upon the following prior art: Ciamiello US 6,802,810 B2 Oct. 12, 2004 Greene US 2008/0262866 Al Oct. 23, 2008 Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Ciamiello and Greene. ISSUES The issues of obviousness tum primarily on whether the combination of the references describes or shows to be predictable adding pay for performance incentive information to a list of patient guidelines. 3 Appeal2014-001670 Application 11/957,387 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 the Prior Art Ciarniello 01. Ciamiello is directed to medical analysis. Ciamiello 1:7-11. 02. Ciamiello describes application tools for identifying potentially problematic patient cases before they become effective problems, case and disease management applications and programs for managing problematic and complex cases and applications and services to improve overall risk underwriting profitability. Ciamiello 2:56----67. 03. Ciamiello describes a Private Health Record, which is a secure, password-protected personal Web page that will be auto-populated by the Care Engine with patient data collected by the Data Vault. The Private Health Record will include the following features: elements of the patient's healthcare history, such as lab, pharmacy and claims data presented in easily understandable format; a patient healthcare diary, which can be used by patients to record the results of self-administered tests, as well as information regarding use of over-the-counter medications and dietary supplements; the ability to "push" relevant health reference information to the patient based on that patient's specific medical data file; the ability to "pull" healthcare information entered by the patient into the Private Health Record into that patient's 4 Appeal2014-001670 Application 11/957,387 medical data file; links to the patient's health plan's Web site for eligibility, referral and procedure authorization information; a physician view function which allows the patient to print out a summary of his or her medical information in a physician-oriented format; links to online disease management communities and content; links to health status and health risk assessment tools; and patient-controlled security access to the Private Health Record. Ciamiello 8:20-50. 04. Ciamiello describes matrices as a predefined list or grouping of elements across all of the classes of data including lab elements, drug elements, diagnoses elements, and procedure elements. As an example, procedure elements could be an MRI if the patient is diagnosed with a certain type of disease and should be having certain types of MRis performed as the normal course of clinical care; the matrix would contain all the appropriate MRI procedure elements. Each element of the matrix is defined and these element definitions are continuously evolving and being redefined based upon current medical information and knowledge. Ciamiello 10:56-11:6. 05. Ciamiello describes the matrix defining the context in which to group elements. As an example, a patient diagnosed with high cholesterol would have their data processed in a matrix which would contain all the defined elements for certain cholesterol reducing drugs and the corresponding care considerations. Ciamiello 11 :7-12. 5 Appeal2014-001670 Application 11/957,387 Greene 06. Greene is directed to improvements in the delivery of health care. Greene para. 2. 07. Greene financially rewards medical practitioners and patients for controlling costs through utilization of evidence-based medicine treatment guidelines and information therapy. Greene para. 35. 08. Greene provides an incentive to the patient to take a pro-active approach to recovery from and prevention of medical conditions. Greene para. 91. 09. Greene provides the medical practitioner with the option of prescribing Ix for the patient. Greene encourages the medical practitioner to prescribe Ix for the patient by rewarding the medical practitioner with a higher rate of compensation. Greene para. 92. ANALYSIS Claims 1 and 13 are essentially system and process versions of similar sets of limitations. Claim 1 recites three structural components, viz. a health record, a gateway with a set of rules and a generator of patient specific guideline lists, and a physician unit allowing display of guidelines and entry of performance acknowledgement. As the phrase "physician unit" might be taken several ways, we find that the Specification clarifies that this refers to a computer unit for physician use and not a set (unit) of physicians 6 Appeal2014-001670 Application 11/957,387 themselves. Spec. 4:27-28. Each of the gateway and physician unit limitations also refers to pay for performance incentives. As to claim 1, the Examiner finds that Ciamiello describes the record, gateway and physician unit absent such pay for performance data, and that Greene suggests adding such pay for performance data. Final Act. 3--4. We are not persuaded by Appellant's argument that While it is necessarily true that a pharmacy order or lab order lists a physician who ordered it, the physician information that may be part of the order is not necessarily present in the lab, pharmacy and claim data, testing results in Ciamiello and there is nothing in Ciamiello to suggest that the physician information is in fact present. It is certainly possible that it is present, but not necessarily present since it could be removed before being stored in the Ciamiello system since the Ciamiello system does not describe any need/use of the physician data. App. Br. 7-8. This argument imagines the complete absence of the known regulation of medicine in this country. Appellant admits that the order necessarily lists the physician. It was at least predictable, not to say a regulatory requirement, that the results of the order refer to the physician under whose authority the order was performed and to whom they are likely addressed. Also, records created by a physician regarding patient health are generally required to indicate the physician identity. Further, claim 1 recites information about a physician, not identifying a physician per se. Information about tests ordered by a physician are at least in that sense about the physician. We are not persuaded by Appellant's argument that Ciamiello fails to describe pay for performance and Greene fails to describe the matrix. App. 7 Appeal2014-001670 Application 11/957,387 Br. 9. The Examiner applies Ciamiello for the matrix and Greene for pay for performance. We are not persuaded by Appellant's argument that Greene does not describe the guideline list with incentives for each guideline. This argument is similar to the prior argument. As Ciamiello describes a matrix of guidelines specific to a patient and Greene describes a set of rules applying pay for performance to individual guidelines, the Examiner finds it was predictable to include Greene's incentives in Ciamiello' s matrix if only to increase the likelihood of following the guidelines for which the incentives are applied. CONCLUSIONS OF LAW The rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable over Ciamiello and Greene is proper. DECISION The rejection of claims 1-20 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 8 Copy with citationCopy as parenthetical citation