12392968 (P.T.A.B. Aug. 25, 2015)

Ex Parte Gravina

Patent Trial and Appeal BoardAug 25, 2015

12392968 (P.T.A.B. Aug. 25, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/392,968 02/25/2009 Craig S. Gravina 1158.012 9822 12973 7590 08/26/2015 Tillman Wright, PLLC P.O. Box 49309 Charlotte, NC 28277 EXAMINER BURGESS, JOSEPH D ART UNIT PAPER NUMBER 3626 MAIL DATE DELIVERY MODE 08/26/2015 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte CRAIG S. GRAVINA ____________________ Appeal 2013-004602 Application 12/392,968 Technology Center 3600 ____________________ Before ANTON W. FETTING, PHILIP J. HOFFMANN, and BRADLEY B. BAYAT, Administrative Patent Judges. BAYAT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 91–95.3 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our decision references Appellant’s Appeal Brief (“App. Br.,” filed Nov. 27, 2012), Reply Brief (“Reply Br.,” filed Feb. 14, 2013), the Non-Final Office Action (“Non-Final Act.,” mailed June 27, 2012), and the Examiner's Answer (“Ans.,” mailed Dec. 14, 2012). 2 Appellant identifies the real party in interest as Allscripts Healthcare Solutions, Incorporated. (App. Br. 3). 3 Claims 1–90 have been canceled (App. Br. 3). Appeal 2013-004602 Application 12/392,968 2 CLAIMED INVENTION The claimed “invention generally relates to a system for care visibility for use in a health care environment, such as a hospital” (Spec. ¶ 4). Claim 91, the sole independent claim on appeal, is reproduced below (see App. Br., Claims App.). 91. A method for facilitating the physical provision of health care services to a plurality of patients, the method comprising: (a) aggregating, at one or more electronic devices, information associated with the provision of health care services to patients from one or more systems, including an admission/discharge/transfer system and a bed management system; (b) displaying, via software, at an electronic touch-screen display, some of the aggregated information, the software being configured to (i) display information associated with a housekeeping status of one [or] more beds in a health care environment, and allow a user to edit the displayed information associated with the housekeeping status of such one or more beds, (ii) display information associated with one or more discharge milestones for one or more patients, and allow a user to edit the displayed information associated with one or more discharge milestones for one or more patients, (iii) display information in both a floor plan view and a tabular view, and (iv) display information regarding the identity of one or more health care providers assigned to a patient, and allow a user to edit the displayed information regarding the identity of one or more health care providers assigned to a patient; (c) receiving authentication information; (d) validating the received authentication information; (e) receiving, via the electronic-touch screen display, user input related to some of the displayed information associated with the provision of health care services to patients; and (f) displaying, via the electronic touch-screen display, updated information associated with the provision of health care Appeal 2013-004602 Application 12/392,968 3 services to patients, the updated information being updated based at least in part on the received user input; (g) wherein the electronic touch-screen display is not a part of a computer work station. REJECTION The following rejection is before us on appeal. Claims 91–95 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Collins, Jr. (US 2006/0049936 A1, pub. Mar. 9, 2006) (hereinafter referred to as “Collins”), Kilgore (US 2002/0072911 A1, pub. June 13, 2002), Felsher (US 2002/0010679 A1, pub. Jan. 24, 2002), and Conexsys, HI-IQ Touch Schedule (Dec. 8, 2006) (http://web.archive.org/web/20061208100708/http://www.hi- iq.com/touch.aspx) (last visited Aug. 29, 2011) (hereinafter referred to as “Conexsys”). Non-Final Act. 3. ANALYSIS Appellant contends that the Examiner has failed to establish that Conexsys is a prior art reference that was publicly available prior to the filing date of the present application (App. Br. 7–9). In contesting the Examiner’s reliance on this document, Appellant argues that the publication date of the Conexsys reference derived from the Internet Archive.org “Wayback Machine” is hearsay under the Federal Rules of Evidence (id. at 7–8). Thus, Appellant “submits that the Examiner has failed to make a ‘satisfactory showing that [the Conexsys NPL reference] [was] otherwise made available to the extent that persons interested and ordinarily skilled in the subject matter or art, exercising reasonable diligence, c[ould have] locate[d] it’” (id. at 8). Appeal 2013-004602 Application 12/392,968 4 As the Examiner correctly points out (see Ans. 4–5), Appellant’s contention is not persuasive of error. First, Manual of Patent Examining Procedure (MPEP) § 2128 (9th Ed., Mar. 2014) provides guidance that “[p]rior art disclosures on the Internet or on an on-line database are considered to be publicly available as of the date the item was publicly posted.” Electronic documents are archived on the Wayback Machine and are dated as of the archived date of the website.4 Appellant does not indicate that the archive date provided for Conexsys by the Wayback Machine was generated other than in the normal course of operation of this site. There is no indication that this date was arbitrarily assigned or that the origin of document itself is suspect. Second, “[t]he general rule is that administrative agencies like the PTO are not bound by the rules of evidence that govern judicial proceedings.” In re Epstein, 32 F.3d 1559, 1565 (Fed. Cir. 1994). As such, in ex parte proceedings before the Board, the PTO is not bound by hearsay evidentiary rules for authenticating prior art documents. Accordingly, without more, we disagree with Appellant that reliance by the Examiner on the Conexsys reference is improper. In fact, we note that the Conexsys document is itself dated on page 2 by providing a copyright notice of 2006. Therefore, because we have determined that the Examiner’s reliance on the Conexsys reference is proper, the indicated prior dates are 4 “Electronic documents that are not themselves dated and have no posting date, but are/were available as links on a website that is archived on the Wayback Machine, are dated as of the archived date of the website.” See Wynn W. Coggins, Prior art in the Field of Business Method Patents - When is an Electronic Document a printed Publication for Prior Art Purposes? AIPLA (Fall 2002) (USPTO) (http://www.uspto.gov/patents/resources/methods/aiplafall02paper.jsp). Appeal 2013-004602 Application 12/392,968 5 sufficient substantial evidence to make a prima facie case and turn the burden of production over to Appellant. Appellant has not addressed or otherwise contested the rejection of claims 91–95 under 35 U.S.C. § 103(a) on the merits in the Briefs before us (see App. Br. 7–9, Reply Br. 2–3). Thus, we summarily sustain this rejection.5 DECISION The rejection of claims 91–95 is proper. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED hh 5 Appellant’s Brief must present arguments responsive to every ground of rejection stated by the Examiner in the Office Action from which the appeal has been taken (see 37 C.F.R. §§ 41.31(c) and 41.37(c)(1)(iv)). If a ground of rejection stated by the Examiner is not addressed in the Appellant’s Brief, Appellant has waived any challenge to that ground of rejection and the Board may summarily sustain it (see id. § 41.39(a)(1)).