Ex Parte Gorup et al

Patent Trial and Appeal Board

Mar 23, 2016

11278094 (P.T.A.B. Mar. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111278,094 0313012006
46169 7590 03/25/2016
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
Paul N. Gorup
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.
CRNI.127584 5837
EXAMINER
RINES, ROBERT D
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
03/25/2016 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
BPARKERSON@SHB.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte PAUL N. GORUP and BARRY C. DYER
Appeal2013-008500
Application 11/278,094
Technology Center 3600
Before NINA L. MEDLOCK, BRUCE T. WIEDER, and
SCOTT C. MOORE, Administrative Patent Judges.
MOORE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the rejection of claims
1-5, 8-10, 12-14, and 16, which are all of the pending claims. 1 We have
jurisdiction under 35 U.S.C. § 6.
We REVERSE.
1 Appellants state that the real party in interest is Cemer Innovation, Inc.
Appeal Br. 3.
Appeal2013-008500
Application 11/278,094
Claimed Subject Matter
The claims are directed to a measuring performance improvement for
a clinical process. Spec. 1 (Title). Claims 1, 8, and 16 are independent.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A computer-storage medium storing computer-useable
instructions that, when used by a computing device, cause the
computing device to perform a method in a clinical computing
environment for measuring performance improvement that has
been realized for a current clinical process within one or more
clinical facilities, the current clinical process being of a particular
type of clinical process, the method comprising:
accessing optimized practice process model data
defining a plurality of critical levers based on an optimized
clinical process, the optimized clinical process having
been predefined for the particular type of clinical process,
each critical lever corresponding with an activity within
the optimized clinical process that has been predetermined
to have a greater potential to impact outcomes for the
particular type of clinical process as compared to other
activities in the optimized clinical process that have not
been predetermined as critical levers, the optimized
practice process model data further defining benefit
metrics for at least one of the critical levers, wherein the
optimized clinical process, critical levers, and benefit
metrics have been predefined based at least in part on
analysis of one or more selected from the following:
medical literature, published medical guidelines, and
operational evidence collected from a plurality of clinical
facilities;
accessing clinically-related data from activities
within the current clinical process corresponding with the
plurality of critical levers defined by the optimized
practice process model data;
identifying a plurality of opportunities to improve
the current clinical process by comparing the clinically-
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Appeal2013-008500
Application 11/278,094
related data to at least one of an optimal measure,
benchmark measure, and a target measure for each of the
plurality of clinical levers defined by the optimized
practice process model data, each opportunity to improve
the current clinical process corresponding with a subset of
critical levers, each subset including one or more of the
plurality of critical levers;
identifying, from the plurality of opportunities, a
first opportunity adopted to implement changes to improve
the current clinical process, the first opportunity
corresponding with a first subset of critical levers;
after changes to improve the current clinical process
have been implemented based on the first opportunity,
accessing one or more current measures for the current
clinical process based on activities of the one or more
clinical facilities during a current period of time, each of
the one or more current measures corresponding with the
first subset of critical levers;
accessing one or more baseline measures for the
current clinical process based on activities of the one or
more clinical facilities during a previous period of time
preceding the current period of time, each of the one or
more baseline measures corresponding with the first
subset of critical levers;
determining a change in at least one critical lever
from the first subset of critical levers from the previous
period of time to the current period of time by comparing
at least one of the one or more current measures against at
least one of the one or more baseline measures; and
determining a performance improvement realized
by adopting the first opportunity to improve the current
clinical process at the one or more clinical facilities by
applying at least a portion of the benefit metrics to the
change in the at least one critical lever.
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Appeal2013-008500
Application 11/278,094
References and Rejections
The Examiner relies on the following references in rejecting the
claims on appeal:
Bi to
Bulitta
US 2003/0216939 Al
US 2004/0176980 Al
Nov. 20, 2003
Sept. 9, 2004
Claims 1-5, 8-10, 12-14, and 16 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Bito and Bulitta. Non-Final
Act. 3 (mailed Dec. 15, 2011).
ANALYSIS
Appellants argue, inter alia, that the cited references do not teach or
suggest "the use of critical levers that correspond with activities that have
been predetermined to have a greater potential to impact outcomes for a
particular type of clinical process," as required by claim 1. Br. 10. In
particular, Appellants assert, "Bito is silent regarding employing critical
levers as in claim 1 that are activities that have been predetermined to have a
greater potential to impact outcomes. Instead, Bito 's clinical pathway is
merely a collection of clinical services, with no thought given to how each
of those services impacts outcomes." Id.
In response, the Examiner directs us to the Specification that
Appellants have cited as support for the disputed claim limitation. See
Ans. 4. In particular, the Examiner finds that the Specification discloses that
optimal clinical processes may be defined based on literature, best practices,
and operational evidence (see id. at 5), but does not contain any other
"disclosure regarding ... calculations or criteria for selection of an
optimized model or designation of certain activities as critical" (id. at 6).
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Appeal2013-008500
Application 11/278,094
The Examiner also finds that the Specification does not contain any
disclosure regarding predetermination of activities as having greater
potential to impact outcomes compared to other activities, other than "the
mere statement that the selected activities have a greater potential to impact
outcomes based on identification of the activities in the optimized model."
Id.
Based on these findings regarding the Specification, the Examiner
determines that the claim limitation "critical lever corresponding with an
activity within the optimized clinical process that has been predetermined to
have a greater potential to impact outcomes for the particular type of clinical
process as compared to other activities in the optimized clinical process that
have not been predetermined as critical levers" should be construed as
encompassing any activity that "in a general sense, [has] the potential to
influence outcomes compared to other activities," if that activity is part of a
clinical process that was "determined based on best practices and/or
operational data/evidence." Ans. 7. The Examiner finds that Bito discloses
a process model that includes activities that are derived from the "case mix"
and the "clinical pathway database," and further finds that the "case mix"
and "clinical pathways" are "derived from previous pathways and cases in
which previous practice is utilized to define the pathway." Ans. 9. The
Examiner then applies the claim construction set forth above, and
determines, based on these findings, that Bi to discloses critical levers of the
type required by claim 1. See id.
We are persuaded that the Examiner erred in finding that Bito teaches
critical levers of the type required by claim 1.
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Appeal2013-008500
Application 11/278,094
Claim l requires an "optimized clinical process" that includes two
types of "activities:" (1) "critical levers," i.e., activities that have been
"predetermined to have a greater potential to impact outcomes ... as
compared to other activities in the optimal clinical process," and (2) "other
activities in the optimal clinical process that have not been predetermined as
critical levers." Thus, an optimized clinical process does not necessarily
include critical levers. Critical levers only exist if there has been a
predetermination that some activities in the optimized clinical process "have
a greater potential to impact outcomes" as compared to other activities in the
same process flow. In contrast, the Examiner's construction of critical lever
encompasses any activity that "in a general sense, [has] the potential to
influence outcomes compared to other activities," so long as that activity is
included in a practice model that was "determined based on best practices
and/or operational data/evidence." See Ans. 7. This construction is
unreasonably broad because it does not take into account the claim language
limiting critical levers to activities within a process that have been
"predetermined to have a greater potential impact on outcomes ... as
compared to other activities" in the same process.
The Examiner does not find that Bito discloses a process model
containing activities that have been "predetermined to have a greater
potential to impact outcomes ... as compared to other activities" in the
process model. Thus, the Examiner's determination that Bito discloses a
"critical lever" of the type required by claim 1 is not adequately supported.
Independent claims 8 and 16 similarly require critical levers that
correspond to activities that have been "predetermined to have a greater
potential to impact outcomes ... as compared to other activities in the
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Application 11/278,094
optimal process flow that have not been predetermined as critical levers."
The rejection of these claims is deficient for the same reason discussed
above with respect to claim 1.
Claims 2-5, 9, 10, and 12-14 each depends from, and thus
incorporates the limitations of, claims 1 or 8. The rejection of claims 2-5, 9,
10, and 12-14 is deficient for the same reasons discussed above.
DECISION
For the foregoing reasons, we reverse the Examiner's decision
rejecting claims 1-5, 8-10, 12-14, and 16.
REVERSED
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