Ex Parte Haider

Patent Trial and Appeal Board

Jan 30, 2018

11635866 (P.T.A.B. Jan. 30, 2018)

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.
11/635,866 12/07/2006 Sultan Haider CRNI.224434 6849
46169 7590 02/01/2018
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
HOLCOMB, MARK
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
02/01/2018 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
Ex parte SULTAN HAIDER
Appeal 2016-007056
Application 11/635,866
Technology Center 3600
Before THU A. DANG, JOYCE CRAIG, and JASON M. REPKO,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 17—37, which constitute all
claims pending in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-007056
Application 11/635,866
STATEMENT OF THE CASE
The Claimed Invention
According to Appellant, the claimed invention relates to “a
method for location and display of information in at least one
electronic patient record that is relevant to a user,” such as “a
physician,” for “supporting a decision or diagnostic.” Spec, f 1.
Claims 17 and 20 are independent. Claim 17 is illustrative of the
invention and the subject matter of the appeal, and reads as follows
17. A medical records system for location and
presentation of information in at least one electronic
patient record to or on behalf of medical personnel,
comprising:
a data processing apparatus including a computer
readable medium on which is stored electronic patient
records and a log file of entries and queries and link
information linking at least one of entries and queries to
information in the electronic patient records, the
electronic patient records including information relating
to a medical history of the patient, the log file of entries
and queries including a log of entries and queries by or
on behalf of medical personnel relating to symptoms or
diagnostic questions of patients whose medical
records include the electronic patient records;
a medical imaging system operable for obtaining
medical images of anatomic regions of a patient, the
medical imaging system being connected
to communicate medical image information to the data
processing apparatus for storage in the stored electronic
patient records;
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a self-learning intelligent algorithm stored on said
computer readable medium and operable on said data
processing apparatus, the self-learning intelligent
algorithm being configured to adapt an output of medical
history information from the at least one patient record in
response to a query directed to the at least one patient
record;
an input device and an output device of said data
processing device at which input information by or on
behalf of the medical personnel and relating to the
electronic patient records is received and to which
response information is provided, respectively, for use by
the medical personnel;
said self-learning intelligent algorithm when
executed on the data processing apparatus is operable to
generate links between medical information in the at least
one electronic patient record based on the entries and
queries stored in the log file and made to the electronic
patient records relating to symptoms or diagnostic
questions by or on behalf of medical personnel, the
symptoms or diagnostic questions relating to medical
care of the patients whose electronic patient records are
stored in the data processing apparatus, the links
grouping medical information in the electronic patient
record by at least one of a medical symptom of the
patient and an anatomical region of the patient and a
pathological finding relating to a medical condition of the
patient and a frequency or time of access to the electronic
patient records, the self-learning intelligent
algorithm generating a prioritized display of medical
information retrieved from the electronic patient record
in response to receipt of a new query from a
medical personnel relating to a possible treatment or
diagnosis of the patient, wherein the prioritized list
includes medical information of the patient relevant to
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Application 11/635,866
the possible treatment or diagnosis of the patient, the
prioritized list being prioritized based on the links.
The Rejections on Appeal
Claims 17—37 stand rejected under 35 U.S.C. § 101 as directed
to patent-ineligible subject matter.
ISSUE
The principal issues before us are whether the Examiner erred
in concluding the claimed “self-learning intelligent algorithm” that is
executed on a “data processing apparatus” (claim 17) is directed to
patent ineligible subject matter.
ANALYSIS
We have reviewed the Examiner’s rejection in light of
Appellant’s arguments presented in this appeal. Arguments which
Appellant could have made, but did not make in the Briefs are deemed
to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). On the record before
us, we are unpersuaded the Examiner has erred. We adopt as our own
the findings and reasons set forth in the rejections from which the
appeal is taken and in the Examiner’s Answer, and provide the
following for highlighting and emphasis.
Rejection under 35 U.S.C. § 101
Appellant argues the Examiner erred in concluding the claims
are directed to an abstract idea and, therefore, constitute patent
ineligible subject matter. App. Br. 8—18.1 Specifically, Appellant
1 Appellant argues the claims, and in particular, independent claim 17,
as a group for purposes of the ineligible subject matter rejection. We
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Application 11/635,866
contends ‘“processing healthcare data to determine a possible
treatment or diagnosis of a patient using a self-learning algorithm’ is
not... an abstract idea.” Id. at 9.
According to Appellant, “[a]ny number of different algorithms
having different functionalities than those specifically recited in
independent claim 17 could be employed to achieve the abstract idea
of ‘processing healthcare data’ so as ‘to determine a possible
treatment or diagnosis of a patient’” and thus “the self-learning
intelligent algorithm of independent claim 17 is not an integral or
necessary element of the abstract idea of ‘processing healthcare
data.’” Id. at 11—12. Accordingly, Appellant contends “claims 17—37
are not directed to an abstract idea on their face, under the first prong
of the Mayo/Alice framework.” Id.
Appellant then contends, even assuming that part one of the
Mayo/Alice framework was satisfied, “claims 17—37 at least recite
additional features that amount to significantly more than an abstract
idea and which are meaningful limitations that transform an abstract
idea into patent eligible subject matter.” Id at 13. In particular,
Appellant contends “the data processing apparatus’s processing speed
and information retrieval speed is improved by the execution of the
self-learning intelligent algorithm that is claimed.” Id. That is, the
additional features recited “amount to significantly more than an
abstract idea because the self-learning intelligent algorithm recited in
choose claim 17 as representative of the group. 37 C.F.R.
§ 41.37(c)(l)(iv).
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Application 11/635,866
the claims improves the functioning of the data processing apparatus
itself.” Id. at 15.
According to Appellant, the claims “recite additional elements
that are not generic computer structure and recite additional elements
that are functions which are not well-understood, routine, and
conventional activities.” Id., emphasis omitted. Rather, Appellant
asserts “the medical imaging system of independent claim 17 is a
specialized medical imaging system for taking images or otherwise
obtaining images of a patient’s anatomy,” while the “obtaining
medical images” step of claim 20 is “a specific and detailed function
that is not well-understood, routine, and conventional.” Id. at 16—17.
Based on the record before us, we are not persuaded of
Examiner error.
Under 35 U.S.C. § 101, the Supreme Court has long interpreted
§ 101 to include an implicit exception: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. See, e.g., Alice
Corp. Pty Ltd. v. CLS Bank Inti, 134 S. Ct. 2347, 2354 (2014). As
Appellants acknowledge (App. Br. 8), the Supreme Court, in Alice,
reiterated the two-step framework previously set forth in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct.
1289, 1300 (2012), “for distinguishing patents that claim laws of
nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice, 134 S. Ct. at
2355. The first step is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts,” such as an
abstract idea, as the Examiner concludes in this case. If the claims are
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Application 11/635,866
not directed to an abstract idea, the inquiry ends. Otherwise, the
inquiry proceeds to the second step where the elements of the claims
are considered “individually and ‘as an ordered combination”’ to
determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Alice, 134 S.
Ct. at 2355 (quoting Mayo, 132 S. Ct. at 1297).
Regarding step one of Alice, as Appellant notes, the Examiner
concludes the claims are directed to an abstract idea of “processing
healthcare data to determine a possible treatment or diagnosis of a
patient using a self-learning algorithm.” App. Br. 8, citing Final
Action at 3. We agree with the Examiner.
As set forth in Appellant’s Specification, the claimed invention
concerns “a method for location and display of information in at least
one electronic patient record that is relevant to a user, in particular to a
physician for supporting a decision or diagnosis.” Spec, f 1. That is,
according to Appellant, the claimed invention is directed to obtaining
and displaying information/data for a particular purpose. Id.
Here, we agree with the Examiner’s conclusion that the claimed
invention, and claim 17 in particular, “merely encompasses the
abstract ideas of comparing new and stored information and using
rules to identify options; and/or using categories to organize, store and
transmit information.” Ans. 6. In particular, as the Examiner points
out, claim 17 merely encompasses the abstract ideas of
comparing new (input/queries, generated links) and
stored information (patient records, log file of entries and
queries, intelligent algorithm) and using rules to identify
options (rules governing operation of algorithm,
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Application 11/635,866
generation of links, display of prioritized
information)(Smartgene); and or using categories to
organize, store and transmit information (data is labled in
particular categories such as summary log file, electronic
patient records, algorithms, queries in order to process ,
develop and communicate information).
Id. at 8.
In this regard, the claims are similar to the claims that our
reviewing courts have found patent ineligible in Elec. Power Grp.,
LLCv. Alstom S.A., 830 F.3d 1350, 1353-54 (Fed. Cir. 2016)
(collecting information and “analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more,
[are] essentially mental processes within the abstract-idea category”),
Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1333 (Fed.
Cir. 2015), cert, denied, 136 S. Ct. 2510, 195 L. Ed. 2d 841 (2016)
(using organizational and product group hierarchies to determine a
price), and Parker v. Flook, 437 U.S. 584 (1978) (mathematical
algorithm used for adjusting an alarm limit). Additionally, the
collection and analysis of information (e.g., recognizing certain data
within the dataset or list) are also abstract ideas. Elec. Power, 830
F.3d at 1353. Similarly, “collecting, displaying, and manipulating
data” is an abstract idea. Intellectual Ventures ILLC v. Capital One
Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017).
Here, claim 17 involves nothing more than collecting and
storing data and then analyzing the data for display, without any
particular inventive technology — an abstract idea. See Elec. Power
Grp., 830 F.3d at 1354. We further refer to Content Extraction, where
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the Federal Circuit has provided additional guidance on the issue of
statutory subject matter by holding claims to collecting data,
recognizing certain data within the collected data set, and storing that
recognized data in memory were directed to an abstract idea and
therefore unpatentable under § 101. Content Extraction &
Transmission LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343 (Fed.
Cir. 2014). On this record, we agree with the Examiner’s
determination that the claims include an abstract idea, under step one
of Alice.
As to Alice step two, although Appellant contends “the data
processing apparatus’s processing speed and information retrieval
speed is improved by the execution of the self-learning intelligent
algorithm that is claimed” (App. Br. 13), we agree with the
Examiner’s finding that the claims “do not include additional
elements that are sufficient to amount to significantly more than the
judicial exception.” Ans. 9. We agree that the additional elements or
combination thereof, “other than the abstract idea per se,” amount to
no more than the recitation of “generic computer structure that serves
to perform generic computer functions.” Id. In particular, we agree
with the Examiner that claim 17 merely recites “conventional
hardware,” including:
data processing apparatus (13, 33), computer readable medium
(36, 39), medical imaging system (4), input device (37, 55),
output device (37, 55), databank (19), user interface device
(37), data storage unit (19, 38), electronic storage medium (36,
39), computer system (13, 33), data processing device (13, 33),
electronic chip card (36, 39)
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to perform
functions that are well-understood, routine, and conventional
activities previously known to be pertinent industry (ie., storing,
obtaining, adapting, receiving, generating, linking, grouping,
displaying, executing, retrieving, applying, presenting,
changing, prioritizing, removing, establishing and dissolving
data).
Id.
We agree with the Examiner that the introduction of such
“conventional hardware” of “generic computer structure” into the
claims to implement an abstract idea is not a patentable application of
the abstract idea. Alice, 134 S. Ct. at 2357—58. We agree that the
claimed elements’ implementation here is purely conventional and
performs basic functions. See id. at 2359—60. As the Examiner points
out, the claimed imaging system is “recited with a high degree of
generality” wherein “the data generated by the imaging system is not
used by any of the claimed elements.” Ans. 9. Thus, “the claims
would function the same whether the data was generated by a medical
imaging system or were merely provided from a database.” Id. at 10.
Here, Appellant does not adequately show how the functions
performed by the claimed elements are done technically such that they
are not routine and conventional functions of a generic computer. See
Versata, 793 F.3d at 1334 (“the limitations of claim 17 involve
arranging a hierarchy of organizational and product groups, storing
pricing information, retrieving applicable pricing information, sorting
pricing information, eliminating less restrictive pricing information,
and determining the price. All of these limitations are well-
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understood, routine, conventional activities previously known to the
industry.”).
We are unpersuaded by Appellant’s contention that the
additional features recited “amount to significantly more than an
abstract idea because the self-learning intelligent algorithm recited in
the claims improves the functioning of the data processing apparatus
itself.” App. Br. 14—15. Here, like Versata, the claim limitations
merely involve storing, analyzing, grouping, and displaying data
(Ans. 9) for use, wherein all of these limitations “are well-understood,
routine, conventional activities previously known to the industry.”
See Versata, 793 F.3d at 1334.
For at least the reasons above, we are not persuaded of
Examiner error in the Examiner’s rejection under 35 U.S.C. § 101 of
claim 17, of independent claim 20 falling therewith, and of the claims
depending respectively therefrom.
Thus, on this record, we sustain the patent-ineligible subject
matter rejection of claims 17—37.
DECISION
We affirm the Examiner’s rejection of claims 17—37.
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). See
37 C.F.R. § 41.50(f).
AFFIRMED
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