Ex Parte Goll et al

Patent Trials and Appeals Board

May 13, 2019

14223037 - (D) (P.T.A.B. May. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/223,037 03/24/2014 Roos Goll
24737 7590 05/15/2019
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.
2013P00518US01 3056
EXAMINER
MOSELEY, GREGORYD
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
05/15/2019 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 ROOS GOLL and TEUN VANDENHEUVEL
Appeal2017-010055 1
Application 14/223,037
Technology Center 3600
Before ADAM J. PYONIN, JOSEPH P. LENTIVECH, and
SHARON PENICK, Administrative Patent Judges.
PYONIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 "The real party in interest for this appeal and the present application is
KONINKLIJKE PHILIPS ELECTRONICS N.V." App. Br. 1.
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Application 14/223,037
STATEMENT OF THE CASE
Introduction
The Application is directed to "offering a system that assists a user in
finding an optimal balance between safety and productivity when creating a
safety checklist that reduces error by omission." Spec. 4. Claims 1-22 are
pending; of these, claims 1 and 10 are independent. App. Br. 25-29. Claim
1 is reproduced below for reference (with added emphasis and bracketed
lettering):
1. A system that facilitates generating checklists for medical
workflows, including:
[a] a computer-readable medium that stores [b] a
plurality of medical workflows and adherent tasks, and one or
more workflow checklist templates;
[ c] a user interface; and
[ d] a processor configured to:
[ e] receive input related to a selected medical workflow;
[ fJ receive occurrence rating input related to a likelihood
of an occurrence of user omission of each task in the workflow;
[g] receive severity rating input related to a severity of
potential harm to a patient due to omission of each task from
the workflow;
[h] populate a wodiflow checklist template with tasks
adherent to the selected medical wodiflow as a function of the
occurrence rating and the severity rating for each task;
[i] insert at least one pause point into the checklist,
wherein the user is prompted to interface with the checklist
during execution of the workflow at the at least one inserted
pause point; and
Li] output via the user interface a populated checklist with
the at least one inserted pause point.
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References and Rejections
The Examiner relies on the following prior art relied in rejecting the
claims on appeal:
Luhr US 2006/0026009 Al Feb.2,2006
MacLeod US 2008/0077 444 A 1 Mar. 27, 2008
Moore US 7,693,727 B2 Apr. 6, 2010
Shneorson et al. US 2010/0332889 Al Dec. 30, 2010
("Shneorson")
Chandler et al. US 7,904,407 B2 Mar. 8, 2011
("Chandler")
McCagg et al. US 2012/0030126 Al Feb.2,2012
(McCagg")
Sivers, "The Checklist Manifesto - by Atul Gawande,"
https://sivers.org/book/ChecklistManifesto (last accessed May 3, 2019).
Claim 19 stands rejected under 35 U.S.C. § l 12(d) as being of
improper dependent form. Final Act. 2.
Claims 1-20 stand rejected under 35 U.S.C. § 101 as being patent
ineligible. Final Act. 3-5.2
2 The Examiner has not included claims 21 and 22 in the patent eligibility
rejection. See Final Act. 3. In the event of further prosecution, the
Examiner may wish to consider whether claims 21 and 22 are patent
ineligible for similar reasons to those provided for claims 1-20. See
USPTO's 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) ("Memorandum"); see also Trading Techs. Int 'l, Inc.
v. !BG LLC, No. 2017-2257, 2019 WL 1716242, at *6 (Fed. Cir. Apr. 18,
2019) ("Claim 1 also recites sending an order by 'selecting' and 'moving' an
order icon to a location along the price axis. This does not change our
determination that the claims are directed to an abstract idea.").
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Claims 1, 5, 10, 14, 19, and 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Moore, Chandler, and Sivers. Final Act. 5-10.
Claims 2 and 11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moore, Chandler, Sivers, and Luhr. Final Act. 10-12.
Claims 3, 4, 12, and 13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moore, Chandler, Sivers, and MacLeod. Final Act. 12-
17.
Claims 8 and 17 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moore, Chandler, Sivers, and Grundy. Final Act. 17-18.
Claims 6, 7, 15, and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moore, Chandler, Sivers, and Shneorson. Final Act. 18-
22.
Claims 21 and 22 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Moore, Chandler, Sivers, and McCagg. Final Act. 22-26.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments. Arguments Appellants could have made but chose not to make
are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). Appellants do
not persuade us the Examiner's rejections are in error; we adopt the
Examiner's findings and conclusions as our own, to the extent consistent
with our analysis herein.
A. 35 U.S.C. § 112
Claim 19 recites "[a] processor configured to execute computer-
executable instructions for performing the method according to claim 10."
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The Examiner rejects dependent claim 19 as being of improper dependent
form. Final Act. 2. The Examiner further explains as follows:
Claim 19 only infringes upon claim 10 when claim 19 is
performing the method steps of claim 10. If there is a processor
that is infringing on claim 19 by being configured to perform the
steps of the method of claim 10, any time that the processor is
not performing the function of claim 10, the processor would be
infringing upon claim 19 and not claim 10.
Advisory Act. 2; see also Ans. 8-9.
Appellants argue the Examiner's rejection is in error, because
"dependent claim 19 further limits claim 1 O" by "recit[ing] ' [a] processor
configured to execute computer-executable instructions."' App. Br. 23.
Appellants argue that claim 19 recites additional limitations with
respect to parent claim 10, but do not address the Examiner's point that
claim 19 could be infringed without infringing claim 10. See id.; see also
Final Act. 28 ("[I]t must be it must be determined whether something that
infringes the dependent claim must infringe upon the independent claim.").
Therefore, we are not persuaded the Examiner errs in finding that, although
claim 19 requires capability to perform the steps in claim 10, it does not
require actual performance of the method. Such claim improperly depends
from the subject matter for parent claim 10, as required for dependent claims
under§ 112(d). See MPEP §§ 608.0l(n)(II) and (III).
B. 35 U.S.C. § 101
The Examiner determines the claims are patent ineligible under 35
U.S.C. § 101, "because the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more." Final Act. 3; see also Alice Corp. Pty. Ltd. v.
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CLS Banklnt'l, 573 U.S. 208,217 (2014) (Describing the two-step
framework "for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.").
After the docketing of this Appeal, the USPTO published revised
guidance on the application of§ 101 ("Guidance"). See Memorandum.
Under the Guidance, the office first looks to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)-(c), (e)-(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, does the Office then look to whether
the claim:
(3) [ a ]dds a specific limitation [beyond the judicial exception]
that is not well-understood, routine, conventional [] in the field
(see MPEP § 2106.05(d)); or
( 4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum at 56.
We are not persuaded the Examiner's rejection is in error. We add the
following primarily for emphasis and clarification with respect to the
Guidance.
I. Step 2A, Prong One
We agree with the Examiner that claim 1 recites "using input from the
occurrence rating and severity rating for each of the steps to create a list of
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tasks to be performed in the medical workflow" (Final Act. 3), and the
recited "creation of workflows are an abstract idea under the category of
'organizing human activity"' (Advisory Act. 2). Limitations [b], [e], [f], [g],
[h ], [i], and Li] of claim 1 recite a process for creating a checklist to be used
for a workflow, to account for "human errors [which] require behavioral
adjustments or adjustments to the current workflow." Spec. 1: 11-12. These
limitations are recitations of "mitigating risk" and "following rules or
instructions," which are examples of "fundamental economic principles or
practices," and "interactions between people." Memorandum at 52. The
Guidance provides that these limitations, therefore, recite the abstract idea of
"[ c Jertain methods of organizing human activity." Id.
Furthermore, these limitations are steps of "observation, evaluation,
judgment, opinion" and are thus the abstract idea of"[ m Jental processes."
Memorandum at 52; see also Spec. 7:2-5 ("The workflows and tasks can
be ... manually entered by the user (e.g. based on the user's knowledge/
experience/opinion/ observations)."); Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) ("[W]ith the
exception of generic computer implemented steps, there is nothing in the
claims themselves that foreclose them from being performed by a human,
mentally or with pen and paper.").
Accordingly, claim 1 "recites a judicial exception [ and] requires
further analysis in Prong Two" of the Guidance. Memorandum at 54.
II. Step 2A, Prong Two
We are also not persuaded the Examiner's rejection is in error
pursuant to Step 2A, Prong Two of the Guidance. Appellants contend
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"claim 1 results in significantly more" than the abstract idea, as "the claims
of the present application address a challenge that is specific to medical
workflows ( e.g. how to control errors of omission in a hospital setting)" by
providing "a novel solution." App. Br. 21-22. That the solution of the
claim may be novel, however, is not sufficient to confer patent eligibility.
See Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1376 (Fed. Cir.
2016) ("[U]nder the Mayo/ Alice framework, a claim directed to a newly
discovered law of nature ( or natural phenomenon or abstract idea) cannot
rely on the novelty of that discovery for the inventive concept necessary for
patent eligibility.").
The limitations Appellants argue, such as the use of the "occurrence
rating" and the "severity rating," are part of the judicial exception of the
creation of workflows, and were analyzed above with respect to Prong One.
See App. Br. 19; see also Final Act. 29; Advisory Act. 2; Memorandum at
54-55 ("[A]ny additional elements recited in the claim beyond the judicial
exception(s)."). We agree with the Examiner that claim 1 does not include
"a technological improvement, nor is it [ responding to] a problem rooted in
technology." Ans. 6; see also Final Act. 30. The claim recites a system
configured to facilitate the judicial exception to provide the non-technical
"advantage [] that safety is improved" and "that worker efficiency is
improved," rather than improving a technical system. Spec. 2:25-26. The
claimed system (including limitations [a], [ c ], and [ d]), moreover, is the
mere use of "a computer as a tool to perform an abstract idea," and "does no
more than generally link the use of a judicial exception to a particular
technological environment." Memorandum at 55; see also Ans. 6-7, 10-11;
Alice, 573 U.S. at 226 ("[N]one of the hardware recited by the system claims
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'offers a meaningful limitation beyond generally linking 'the use of the
[ method] to a particular technological environment,' that is, implementation
via computers." ( citation omitted)).
Further, Appellants' argument regarding preemption does not show
Examiner error (see App. Br. 22-23). Appellants broadly claim a system
( claim 1) and method ( claim 10) for creating a workflow based on the
important issues that would arise while following the workflow. See Final
Act. 3. Based on the record before us, these claims would appear to "pre-
empt use of this approach in all fields, and would effectively grant a
monopoly over an abstract idea." Bilski v. Kappas, 561 U.S. 593, 612,
(2010). In any event, we agree with the Examiner that the question of
preemption in the instant case has been resolved by the rejection itself. See
Ans. 8; see also Two-Way Media Ltd. v. Comcast Cable Commc 'ns, LLC,
874 F.3d 1329, 1339 (Fed. Cir. 2017) ("[W]here a patent's claims are
deemed only to disclose patent ineligible subject matter under the Alice
framework, as they are in this case, preemption concerns are fully addressed
and made moot.").
Accordingly, we determine claim 1 does not integrate the judicial
exception into a practical application. See Memorandum at 54. As the
"claim recites a judicial exception and fails to integrate the exception into a
practical application" (id. at 51 ), "the claim is directed to the judicial
exception" (id. at 54).
III. Step 2B
We agree with the Examiner that the claimed elements and
combination of elements do not amount to significantly more than the
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judicial exception itself. See Final Act. 4-5; see also Memorandum at 56.
Appellants argue the claims "operate in a non-conventional and non-generic
way to provide a medical workflow checklist" but Appellants merely recite
block quotations of the claims without showing any steps amount to
significantly more than the identified judicial exception itself. App. Br. 19;
see also Memorandum fn. 24. Based on the record before us, we agree with
the Examiner that the claimed additional elements and combination of
elements only recite generic components and steps that are well-understood,
routine, and conventional. See Final Act. 4-5. 30-31; see also Spec. 1 :6-25,
4:30-5:20; Alice, 573 U.S. at 226; OIP Techs., v. Amazon.com, 788 F.3d
1359, 1363 (Fed. Cir. 2015).
Accordingly, we agree with the Examiner that claim 1 is patent
ineligible, as well as independent claim 10 which is not separately argued.
See Advisory Act. 2; see also App. Br. 22.
IV. Dependent Claims
Appellants argue the Examiner's patent eligibility rejection of the
dependent claims is in error, because the dependent claims variously
"result[] in improved technical functioning," "reduce[] error by omission,"
and "more efficiently create a checklist." App. Br. 20-21.
We are not persuaded of reversible error. Appellants have not shown
the dependent limitations are meaningfully different from the independent
claims for purposes of the Alice analysis. Similar to the discussion above
with respect to claim 1, reducing errors and efficient checklist creation are
direct properties of the identified judicial exception. See Ans. 7. Nor are we
persuaded the Examiner errs in determining the claims do not improve
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technical functioning, as Appellants have not shown that "when a task is
omitted from a checklist" will result in any measurable improvement in a
computer system. App. Br. 20; see also Ans. 6-7; Trading Techs. Int'!, Inc.
v. !BG LLC, No. 2017-2323, 2019 WL 1907236, at *4 (Fed. Cir. Apr. 30,
2019) ("[T]he purported advance is a process of gathering and analyzing
information of a specified content, then displaying the results, and not any
particular assertedly inventive technology for performing those functions."
( quotations omitted)).
Accordingly, we are not persuaded the Examiner errs in rejecting
dependent claims 2, 3, 6, 8, 21, and 22 under 35 U.S.C. § 101. Cf Internet
Patents Corp. v. Active Network, 790 F.3d 1343, 1349 (Fed. Cir. 2015)
("[ A ]dditional limitations of these dependent claims do not add an inventive
concept, for they represent merely generic data collection steps or siting the
ineligible concept in a particular technological environment."). We sustain
the Examiner's rejection of these claims, as well as the remaining dependent
claims not separately argued. See App. Br. 22.
C. 35U.S.C.§103
I. Independent claim 1
Appellants argue "because none of the[] references teach 'to populate
a workflow checklist template with tasks adherent to the selected medical
workflow as a function of the occurrence rating and the severity rating for
each task,' claim 1 is patentable over the proposed combination of Moore,
Chandler and Sivers." App. Br. 9. Appellants further contend that,
"[b Jecause Chandler is entirely silent with respect to checklists, a skilled
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artisan would not have been motivated to combine the teach[ings] of
Chandler in a checklist of Moore." App. Br. 10.
Appellants' arguments are unpersuasive of error for not addressing the
Examiner's findings. For example, Appellants contend "Chandler in no way
teaches populating a checklist" and "Moore cannot cure this deficiency of
Chandler because Moore does not teach an occurrence rating and also
because Moore does not teach a severity rating." App. Br. 9. This is the
opposite of the Examiner's rejection, as the Examiner finds "Moore teaches
a method and system for creating patient checklists" and "Chandler teaches a
system and method for determining the risk of performing a task using both
a likelihood of occurrence rating and a severity rating." Ans. 2; see also
Moore ,-J,-J 37-39; Chandler 8:36-40. Appellants' arguments, thus, do not
show the Examiner's mapping of the claim limitations to the references is in
error, or that the Examiner errs in finding one of ordinary skill would
"incorporate the analysis component from Chandler to aid Moore ... in
order to 'reduce risk and improve process efficiency."' Final Act. 32 ( citing
Chandler 2:37-38). We find the Examiner's explanation to constitute
articulated reasoning with rational underpinnings sufficient to justify the
legal conclusion of obviousness. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (citing In re Kahn, 441 F3d 977,988 (Fed. Cir. 2006).
Accordingly, we sustain the Examiner's' rejection of independent
claim 1, and claim 10 not separately argued. See App. Br. 8.
II. Dependent claim 2
"Claim 2 calls for omit a task from the checklist when the occurrence
rating for the task is below a predetermined occurrence threshold and the
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severity rating is below a predetermined severity threshold," and Appellants
argue "the applied references do not teach these features." App. Br. 10.
Particularly, Appellants contend "Luhr does not disclose separate thresholds
( e.g. Luhr does not teach one threshold for an occurrence and another
threshold for a severity)" and "Chandler uses one overall threshold (the risk
assessment threshold), and does not teach two separate threshold values."
Id. at 11.
Similar to claim 1, Appellants' arguments are unpersuasive of error
for not addressing the Examiner's findings. With respect to claim 2, the
Examiner finds "[i]t would have been obvious to one having ordinary skill in
the art ... to add the threshold value comparison from Chandler to the
system of claim l," and "[i]f a threshold can be applied to one rating score, it
is obvious that it can also be applied to a similar score." Final Act. 11;
Ans. 3; see also Chandler 5:29-49. The Examiner further finds one of
ordinary skill would "omit tasks from checklists created by the system of
claim 1 based on a low occurrence or severity rating by implementing the
process of eliminating tasks that are less relevant to the checklist from
Luhr." Final Act. 11; see also Luhr ,-J 63; Ans. 3. Appellants argue the
particular disclosure of each reference but do not show the Examiner errs in
finding the combined teachings of the references would have suggested the
limitations of the claim to those of ordinary skill in the art. See Ans. 3; see
also In re Keller, 642 F.2d 413,425 (CCPA 1981) ("The test for
obviousness is not ... that the claimed invention must be expressly
suggested in any one or all of the references. Rather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art.").
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Accordingly, we sustain the Examiner's' rejection of dependent claim
2, and claim 11 not separately argued. See App. Br. 11.
III. Dependent claim 3
"Claim 3 calls for receive and evaluate check moment input that
indicates that checking the task after performance poses an immediate
danger to the patient; and insert into the checklist template a reminder to
perform the task before performance," and Appellants contend "the applied
references do not teach these features." App. Br. 11-12. Particularly,
Appellants contend Chandler does not teach either "checking the task after
performance" or "inserting a reminder," and "Macleod paragraph 0003
generically teaches a 'surgical pause.' But, this in no way suggests
receiving an input that that indicates that checking the task after performance
poses an immediate danger to the patient and then inserting a reminder to
perform that specific task specifically before performance of that task."
App. Br. 12.
Claim 3 depends from claim 1, and is rejected in view of the
combined teachings of Moore, Chandler, Sivers, and MacLeod. See Final
Act. 12. Sivers, as cited by the Examiner with respect to parent claim 1,
teaches checking a task either before or after performance and the use of a
pause point. See Final Act. 7; see also Sivers, 6 ("You must decide whether
you want a DO-CONFIRM checklist or a READ-DO checklist .... [Users
can] pause to run the checklist and confirm that everything that was
supposed to be done was done."). Macleod, as cited by the Examiner,
teaches or suggests "reminders to perform the task before performance," by
using a surgical pause. Final Act. 14 ( emphasis omitted); see also Macleod
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,i 3. Chandler is cited for teaching "detennin[ing] if there is a risk of harm
to the patient." Final Act. 13 (emphasis omitted); see also Chandler 8:29-
9:3 ("The risk assessment screen."); Ans. 3. Moore, furthermore, is cited by
the Examiner for "teach[ing] inserting items into checklists." Ans. 3; see
also Moore 3:33-35; Final Act. 6.
Appellants argue the particular disclosures of Chandler and Macleod
but do not show the Examiner errs in finding the combined teachings of the
references would have suggested the disputed limitations to those of
ordinary skill in the art. See Ans. 3; see also KSR, 550 U.S. at 420,421 (The
skilled artisan is "a person of ordinary creativity, not an automaton," and this
is a case in which the skilled artisan would "be able to fit the teachings of
multiple patents together like pieces of a puzzle.").
Accordingly, we sustain the Examiner's' rejection of dependent claim
3, and claim 12 not separately argued. See App. Br. 12-13.
IV. Dependent claim 4
"Claim 4 calls for receive and evaluate check moment input that
indicates that checking the task after performance poses no immediate
danger to the patient; and insert into the checklist template a prompt for the
user to verify performance of the task after performance," and Appellants
contend "the applied references do not teach these features." App. Br. 13.
Particularly, Appellants contend Chandler does not teach either "checking
the task after performance" or "inserting a prompt," and "Macleod paragraph
0038 teaches a validation card that includes a checklist," but "nothing about
Macleod's validation card suggests inserting a prompt to verify performance
of a specific task on a checklist, much less suggests inserting a prompt to
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verify performance of task that it has been indicated that checking the task
after performance poses no immediate danger to the patient." App. Br. 12.
Similar to claim 3 discussed above, Appellants argue Chandler and
Macleod separately, and fail to persuade us the Examiner errs in finding the
limitations of claim 4 to be obvious in view of the combined teachings of the
cited references. Claim 4 differs from claim 3, inter alia, by reciting that
"checking the task after performance poses no immediate danger to the
patient" and "verify[ing] performance of the task after performance." As
discussed above, Sivers teaches or suggests that tasks may be checked
before or after performance, Macleod teaches or suggests verifying tasks,
and Chandler teaches or suggests identifying the danger to a patient. See
Final Act. 7-8, 14-16; see also Sivers 6; Macleod ,-J 38; Chandler 2:8-11,
8:29-9:3. Appellants fail to show the Examiner errs in finding the combined
teachings of the references would have suggested the limitations of the claim
to those of ordinary skill in the art. See Ans. 3.
Accordingly, we sustain the Examiner's' rejection of dependent claim
4, and claim 13 not separately argued. See App. Br. 13.
V. Dependent claim 6
"Claim 6 calls for that the predetermined value is a percentage of a
product of a maximum severity rating and a maximum occurrence rating,"
and Appellants contend "the applied references do not teach these features."
App. Br. 13. Appellants argue Shneorson does not teach the limitations of
claim 6 as inherited from parent claims 5 and 1 (App. Br. 14), and "there is
no motivation to combine Shneorson with either Moore or Chandler" (App.
Br. 15). Further, Appellants argue "Shneorson-which discusses downtime
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probabilities of virtual machines-is clearly not in the field of endeavor of
generating checklists for medical workflows. In addition, Shneorson is not
reasonably pertinent to the problem faced by the inventors: reducing
physician error." App. Br. 15.
We are not persuaded the Examiner errs. Regarding the
analogousness of Shneorson, the Examiner finds "Shneorson teaches a
system and method for assessing risk using the same factors used in this
application, so, even though it is not in the field of populating checklists for
healthcare workflows, it is solving a problem addressed by this application
of assessing risk using likelihood and severity." Ans. 6. We agree. We find
Appellants' characterization of the problem facing the inventor to be unduly
narrow. "A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor's endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor's attention in considering his problem." In re Clay, 966 F.2d
656, 659 (Fed. Cir. 1992); see also Spec. 1:1-5. Appellants fail to show the
Examiner errs in determining one of skill in the art would consider
Shneorson's teachings with respect to assessing risk. See Final Act. 19; see
also Reply Br. 10; Shneorson ,-J,-J 56, 81.
We are similarly unpersuaded by Appellants remaining arguments
with respect to dependent claim 6. The Examiner determines that the
limitations of claim 6 were obvious to one of ordinary skill in view of the
combined teachings of Moore, Chandler, Sivers, and Shneorson; we find
insufficient technical argument or evidence in the record before us to show
this is in error. See Final Act. 18-19; see also KSR, 550 U.S. at 417.
("When a work is available in one field of endeavor, design incentives and
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other market forces can prompt variations of it, either in the same field or a
different one," and "if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.").
Accordingly, we sustain the Examiner's' rejection of dependent claim
6, and claim 15 not separately argued. See App. Br. 15.
VI. Dependent claim 8
"Claim 8 calls for that for each task, add the severity rating to the
occurrence rating; and include the task in the populated template when the
sum of the severity rating and the occurrence rating is above a
predetermined value," and Appellants contend "the applied references do not
teach these features." App. Br. 16. Particularly, Appellants argue
"Gru[ n ]dy teaches estimating a total risk of a person. But, Gru[ n ]dy' s
estimation of a total risk of a person does not suggest comparing a risk to a
predetermined value, much less suggest comparing a total risk to a
predetermined value to include a task in a populated template." Id.
Appellants' arguments against Grundy in isolation do not persuade us
the Examiner errs in finding the claim limitations taught or suggested by the
combination of cited references. That is, the Examiner finds one of ordinary
skill would modify the system of Moore, Chandler, and Sivers with
Grundy's teachings of calculating a total risk, yielding the limitations of
claim 8. See Final Act. 17-18; see also Moore 3: 14-23, 33-35; Chandler
2:8-11, 8:61-63; Sivers 6; Grundy, 1481. Appellants do not show such
findings are in error.
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Accordingly, we sustain the Examiner's' rejection of dependent claim
8, and claim 17 not separately argued. See App. Br. 16.
VII. Dependent claim 21
"Claim 21 calls for to generate a graphical display allowing the
likelihood of the occurrence of user omission to be input via a slider bar; and
receive the occurrence rating input related to the likelihood of the occurrence
of user omission input via the slider bar," and Appellants contend "the
applied references do not teach these features." App. Br. 16. Particularly,
Appellants contend "McCagg is nonanalogous art to the claimed invention,"
and, in any event, "McCagg paragraph 0080 teaches entering job profile
data-not entering an occurrence rating input related to the likelihood of the
occurrence of user omission." App. Br. 16-1 7.
We agree with the Examiner that McCagg is "in the field of graphical
user interfaces (GUis)" (Ans. 5), and thus would have commended itself to
an inventor's attention in considering the problem of presenting an interface
as in claim 21. Further, both the reference and the present invention are in
the field of creating structured workflows. See, e.g., Spec. 4: 18-20; see also
McCagg Title ("Structured Job Search Engine With Guided Navigation").
As such, we agree with the Examiner that one of ordinary skill would apply
McCagg's GUI and slider bar teachings to the cited references' system for
receiving, inter alia, an occurrence rating. See Final Act. 22-23; see also
Chandler 7 :31-34, 8: 10-15, Figs. 2, 8; McCagg ,-J80 ("sliding a slider bar").
Accordingly, we sustain the Examiner's' rejection of dependent claim
21.
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VIII. Dependent claim 22
"Claim 22 calls for generate a graphical display allowing the
likelihood of the occurrence of user omission to be input via a plurality of
slider bars, each slider bar of the plurality of slider bars corresponding to a
task in the workflow," as well as "receive the occurrence rating input related
to the likelihood of the occurrence of user omission input via the plurality of
slider bars," and Appellants contend "the applied references do not teach
these features." App. Br. 17. Particularly, Appellants contend "McCagg is
nonanalogous art to the claimed invention," "McCagg paragraph 0080
teaches entering job profile data-not entering an occurrence rating input
related to the likelihood of the occurrence of user omission," and that
"McCagg does not teach a plurality of slider bars with each slider bar of the
plurality of slider bars corresponding to a task in a workflow." Id. at 17-18.
We are not persuaded the examiner errs, for the reasons discussed
above with respect to the other claims. Appellants' focus on McCagg and
do not challenge the Examiner's obviousness reasoning; thus, these
arguments do not show the Examiner errs in finding the limitations of claim
22 to be obvious in view of the combined teachings of Moore, Chandler,
Sivers, and McCagg. See Final Act. 24-26; see also Ans. 5.
Accordingly, we sustain the Examiner's' rejection of dependent claim
22.
CONCLUSION
We sustain the Examiner's 35 U.S.C. § l 12(d) rejection of claim 19.
We sustain the Examiner's 35 U.S.C. § 101 rejection of claims 1-20.
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We sustain the Examiner's 35 U.S.C. § 103 rejection of claims 1-4, 6,
8, 10-13, 15, 17, 21, and 22. Appellants advance no further argument on the
remaining claims. Accordingly, we sustain the Examiner's 35 U.S.C. § 103
rejections of these claims for the same reasons discussed above.
DECISION
The Examiner's decision rejecting claims 1-22 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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