Ex Parte Hoffman et al

Patent Trial and Appeal Board

Aug 24, 2017

13269262 (P.T.A.B. Aug. 24, 2017)

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.
13/269,262 10/07/2011 MARK A. HOFFMAN CRNI. 164864 9372
46169 7590 08/28/2017
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
HUNTER, SEAN KRISTOPHER
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
08/28/2017 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 MARK A. HOFFMAN,
HUGH RYAN,
BHARAT SUTARIYA,
LEO PEREZ,
and JOHN KUCKELMAN
Appeal 2015-006374
Application 13/269,262
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. FETTING, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
FETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Mark A. Hoffman, Hugh Ryan, Bharat Sutariya, Leo Perez, and John
Kuckelman (Appellants) seek review under 35 U.S.C. § 134(a) of a final
1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed October 22, 2014) and Reply Brief (“Reply Br.,” filed June 15,
2015), and the Examiner’s Answer (“Ans.,” mailed April 13, 2015), and
Final Action (“Final Act.,” mailed June 2, 2014).
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Application 13/269,262
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 Appellants invented a way of surveillance and monitoring of a
patient's risk for developing a particular disease or condition. Specification
para. 4.
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 method for detecting sepsis in a patient based on multi­
site surveillance, the method comprising: a computing device
having a processor and a memory that performs the following
steps:
[1] receiving, from a first medical organization, a first set of
patient information
corresponding to a patient who has received medical
treatment at the first medical organization;
[2] determining that an active risk assessment array exists for
the patient,
wherein the active risk assessment array represents the
patient's risk of developing sepsis;
[3] determining that the active risk assessment array that is
specific to sepsis is currently active,
wherein currently active is specific to a duration of time
within which sepsis can occur in the patient;
[4] for a first node of the active risk assessment array
corresponding to the first set of patient information,
populating a value of the first node with at least a portion
of the first set of patient information;
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[5] receiving, from a second medical organization, a second set
of patient information,
wherein the patient has received medical treatment at the
second medical organization,
and
wherein the first medical organization and the second
medical organization maintain separate medical record
systems;
[6] for a second node of the active risk assessment array
corresponding to at least a portion of the second set of patient
information,
populating the value of the second node with the at least
the portion of the second set of patient information;
[7] determining that sepsis-specific actionable criteria have
been met
based on at least the values of the first node and the
second node of the active risk assessment array;
and
[8] providing a notification that the sepsis-specific actionable
criteria have been met.
The Examiner relies upon the following prior art:
Milstein US 2006/0218010 A1 Sept. 8, 2006
Michon US 2007 /0233391 A1 Oct. 4, 2007
Claims 1—20 stand rejected under 35 U.S.C. § 101 as directed to non—
statutory subject matter.
Claims 1—20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Michon and Milstein.
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ISSUES
The issues of eligible subject matter turn primary on whether the
claims recite more than conceptual advice on collecting patient information.
The issues of obviousness turn primarily on whether the art applied is within
the scope of the claims.
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 Claim Construction
01. The disclosure contains no lexicographic definition of “sepsis.”
02. The customary meaning of sepsis, as a medical term of art, is
“[t]he presence of pathogenic microorganisms or their toxins in
tissues or in the blood.”2
03. Sepsis is a complication caused by the body’s overwhelming
and life-threatening response to an infection, which can lead to
tissue damage, organ failure, and death.3
2 http://www.medicaldictionaryweb.com/Sepsis-defmition/, last visited
August 2, 2017.
3 Centers for Disease Control and Prevention, Sepsis Questions and
Answers, https://www.cdc.gov/sepsis/basic/qa.html, last visited August 2,
2017.
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Facts Related to Appellants ’ Disclosure
04. Manager 202 builds a multi-site risk assessment array 216 for
an individual patient. Multi-site risk assessment array 216
includes one or more state "nodes" or compartments for the
individual patient. Each node in the array 216 represents a distinct
parameter for a particular condition or patient information. Array
216 includes a defined period of persistence based on the nature of
the clinical utility of the particular condition. For example, an
array for sepsis for the patient may last 48 hours while an array for
controlled substance manipulation for the patient may last years.
Spec. para. 37. This describes one embodiment of the disclosed
invention. Spec. para. 29.
05. Arrays, as used herein, are a management system for
monitoring the symptoms that a user has in reference to a
particular disease or condition. This information, together, is
called an array. Some boxes of an array may have patient
information and some may not, indicating that patient information
corresponding to the blank boxes has not yet been received from
the medical organizations. It should be noted that arrays have a
duration of time in which they remain active. Spec. para. 46.
Facts Related to the Prior Art
Michon
06. Michon is concerned with immunological informatics, and
more particularly to acquiring, storing and utilizing immunologic
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information of individuals and populations in various commercial,
research and governmental contexts. Michon para. 2.
07. Michon describes a biological sample being taken from one or
more individuals and the sample submitted to one or more panels
of assays. The results of the assays are stored and analyzed by (i)
calculating derived quantities which take the results of the assays
as inputs, and (ii) submitting the results and the derived quantities
to a set of rules, each of which has a defined output state. An
appropriate recommendation as to one or more immunization or
other interventions can be generated. The assay panel or panels
can be chosen as a function of a defined demographic group or
enterprise affinity into which the individual corresponds. A
database can be maintained for storing and further processing of
all immunologic informatics collected. Michon para. 16.
08. Immunologic information is to be understood in a broad sense,
including any information which may be useful as an indicator of
any immunological function of a mammalian body. More
specifically, Michon describes acquiring information that is
indicative of the immune status of an individual, processing that
information, storing the raw information as well as the outputs
from the processing stage, and of that information at various times
and in various ways to recommend various actions such as
prophylactic or further diagnostic interventions, or abstention
from action, for individual or population. Michon exploits a
number of advances in technology as well as advances in how
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people think about medical treatment. A number of
immunological or immunological related (in a broad sense) assays
can be administered to an individual. Using modem technology
such as, for example, the M1M Analyzer marketed by BioVeris™
Corporation of Gaithersburg, Md., one can mn a large number of
assays, such as, for example 20, 40 or 60, and obtain results
therefrom in a relatively short period of time. Michon para. 134.
09. Prior to elective surgery, it would benefit the patient and the
attending surgeon to know the level of antibody protection to
these infectious agents. An ImmunoScore panel could be tailored
to meet these diagnostic needs and immunizations could be
provided to those agents with available vaccine. In addition,
following surgery patients could be screened for c reactive protein
(CRP), tumor necrosis factor-alpha (TNF-.alpha.), IL-6, and
soluble IL-2 receptor (sIL-2R) as possible early indicators of
inflammation leading to sepsis. It is important to screen for a
panel of analytes indicating sepsis, as one analyte is often not
enough to get a proper diagnosis. Michon para. 1191.
Milstein
10. Milstein is concerned with the use of cluster of differentiation
(CD) molecules in detecting the presence and/or assessing the
progression and/or assessing the response to therapeutic
intervention of one or more disease states in an individual. In
particular it relates to the use of profiles/fmgerprint/s of shed CD
(sCD) molecules in body fluids in detecting and/or assessing the
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progression of one or more disease states in an individual.
Milstein para. 1.
11. Milstein describes detecting the extent of one or more disease
states in an individual comprising the step of comparing one or
more sCD fmgerprint/s generated from that individual with one or
more reference sCD fmgerprint/s. Milstein para. 38.
12. Milstein describes the term “detecting the extent of one or more
disease states” as including within its scope detecting the severity
of one or more disease states within an individual. For example it
may allow low grade and high grade forms of the disease to be
distinguished. It allows localized and metastasized forms of a
particular disease to be distinguished. In such cases one or more
sCD fingerprints of an individual are compared with one or more
reference disease sCD fingerprints representative of disease states
at one or more degrees of severity. Milstein para. 39.
13. Milstein describes assessing the progression of a disease state in
an individual comprising the step of comparing the sCD
fingerprint of an individual at two or more periods during the
occurrence of the disease. Milstein para. 40.
14. Milstein describes the term “assessing the progression of a
disease state” as meaning assessing whether the disease has
increased in severity, decreased in severity or remains the same
severity compared with a different period during the life-span of
the disease. In addition the term “assessing the progression of a
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disease state” includes within its scope monitoring the progression
of a disease state. Milstein para. 41.
15. Milstein describes the term a “disease state” as referring to any
impairment of the normal physiological functions affecting an
organism or any disease condition, disorder or the presence of a
particular microbial, viral, parasitic or other pathogenic agent
known to one skilled in the art. Milstein para. 43.
ANALYSIS
Claims 1—20 rejected under 35 U.S.C. § 101 as directed to non—statutory
subject matter
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First,. . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat else
is there in the claims before us? To answer that question,. . .
consider the elements of each claim both individually and “as
an ordered combination” to determine whether the additional
elements “transform the nature of the claim” into a patent-
eligible application. [The Court] described step two of this
analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp., Pty. Ltd. v CLS Bank Inti, 134 S.Ct. 2347, 2355 (2014) (citing
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S.Ct.
1289 (2012)) (Citations omitted).
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To perform this test, we must first determine whether the claims at
issue are directed to a patent-ineligible concept. The Examiner finds the
claims are directed to comparing new and stored information and using rules
to identify options. Ans. 11.
While the Court in Alice made a direct finding as to what the claims
were directed to, we find that this case’s claims themselves and the
Specification provide enough information to inform one as to what they are
directed to.
The preamble to claim 1 recites that it is a method for detecting sepsis
in a patient. The steps in claim 1 result in determining that sepsis-specific
actionable criteria have been met. We note that the word “sepsis” is broad,
generally referring to presence of pathogenic microorganisms or their toxins.
The Specification at paragraph 4 recites that the invention relates to
surveillance and monitoring of a patient's risk for developing a particular
disease or condition. Thus, all this evidence shows that claim 1 is directed
to an abstract idea even broader than that the Examiner finds, i.e. monitoring
a patient’s health risk based on presence of pathogenic microorganisms or
their toxins, i.e. patient monitoring.
It follows from prior Supreme Court cases, and Bilski4 in particular,
that the claims at issue here are directed to an abstract idea. The concept of
patient monitoring is a fundamental medical practice long prevalent in our
system of medicine. The use of patient monitoring is also a building block
4 Bilski v. Kappos, 561 U.S. 593 (2010).
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of any healthcare system. Thus, patient monitoring, like hedging, is an
“abstract idea” beyond the scope of § 101. See Alice Corp. Pty. Ltd. at 2356.
As in Alice Corp. Pty. Ltd., we need not labor to delimit the precise
contours of the “abstract ideas” category in this case. It is enough to
recognize that there is no meaningful distinction in the level of abstraction
between the concept of risk hedging in Bilski and the concept of patient
monitoring at issue here. Both are squarely within the realm of “abstract
ideas” as the Court has used that term. See Alice Corp. Pty. Ltd.at 2357.
Further, claims involving data collection, analysis, and display are
directed to an abstract idea. Elec. Power Grp. v. Alstom S.A., 830 F.3d 1350,
1353 (Fed. Cir. 2016) (holding that “collecting information, analyzing it, and
displaying certain results of the collection and analysis” are “a familiar class
of claims ‘directed to’ a patent ineligible concept”); see also In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093—94 (Fed. Cir.
2016). This is true even though the information at issue may be limited to
very specific content found only in the field of healthcare. Claim 1, unlike
the claims found non-abstract in prior cases, uses generic computer
technology to perform data collection, analysis, and notification and does
not recite an improvement to a particular computer technology. See, e.g.,
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314—15
(Fed. Cir. 2016) (finding claims not abstract because they “focused on a
specific asserted improvement in computer animation”). As such, claim 1 is
directed to the abstract idea of receiving, analyzing, and providing
notification of data.
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The remaining claims merely describe criteria and data employed in
the monitoring. We conclude that the claims at issue are directed to a
patent-ineligible concept.
The introduction of a computer into the claims does not alter the
analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on ... a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice Corp. Pty. Ltd., 134 S.Ct. at 2358 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea ... on a
generic computer.” Alice Corp. Pty. Ltd., 134 S.Ct. at 2359. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer to receive data, determine whether data exists and is actively used,
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writing data, and using criteria to compute some evaluation amounts to
electronic data query and retrieval—one of the most basic functions of a
computer. All of these computer functions are well-understood, routine,
conventional activities previously known to the industry. In short, each step
does no more than require a generic computer to perform generic computer
functions.
Considered as an ordered combination, the computer components of
Appellants’ method add nothing that is not already present when the steps
are considered separately. Viewed as a whole, Appellants’ method claims
simply recite the concept of patient monitoring as performed by a generic
computer. To be sure, the claims recite doing so by advising one to look for
an active risk assessment array that is specific to sepsis in patient data from
two separate organizations and determining whether certain criteria have
been met. But this is no more than abstract conceptual advice on the
parameters for such patient monitoring and the generic computer processes
necessary to process those parameters, and do not recite any particular
implementation. The recital of “nodes” does not lend any technical
advantage or implementation as a node is itself no more than an abstraction
of a processing point.
The method claims do not, for example, purport to improve the
functioning of the computer itself. Nor do they effect an improvement in
any other technology or technical field. The 37 pages of specification spell
out different types of generic equipment and different parameters for such
assessment arrays using this concept and the particular steps such
conventional processing would entail based on the concept of aggregating
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such patient accounts under different criteria. They do not describe any
particular improvement in the manner a computer functions. Instead, the
claims at issue amount to nothing significantly more than an instruction to
apply the abstract idea of patient monitoring using some unspecified, generic
computer. Under our precedents, that is not enough to transform an abstract
idea into a patent-eligible invention. See Alice Corp. Pty. Ltd. at 2360.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “wam[ed] ... against” interpreting § 101“in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’
Alice Corp. Pty. Ltd. at 2360.
We are not persuaded by Appellants' argument that “[e]ven if the
computer recited in claims were a mere generic computer performing mere
generic functions, it would have no bearing on whether the method
embodied by the claims is ‘well known in the art.’” Reply Br. 4. Appellants
misread Alice in that the first part of its test is whether the claims are
directed to an abstract idea. Thus, the issue Appellants argue is whether
what the claims are directed to was well known in the art, which we find to
be the case, supra. Patient monitoring per se dates back to Hippocrates.
We are not persuaded by Appellants' argument that methods
embodied by the claims are implemented by a computer with a non-generic
structure that performs non-generic computer functions. Reply Br. 4—5.
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Appellants contend that a generic computer cannot follow directions, but
must be first programmed. While superficially true, this argument ignores
the Supreme Court’s admonishment
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Wholly generic computer implementation is not
generally the sort of “additional featur[e]” that provides any
“practical assurance that the process is more than a drafting
effort designed to monopolize the [abstract idea] itself.”
Alice Corp. Pty. Ltd. at 2350-2351 (citations omitted). Saying that a
computer is programmed to perform steps is no more than saying apply
those steps with a computer.
Beyond the abstract idea of advertising distribution, the claims
merely recite well-understood, routine conventional activities,
either by requiring conventional computer activities or routine
data-gathering steps. Considered individually or taken together
as an ordered combination, the claim elements fail to transform
the claimed abstract idea into a patent eligible application.
OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (2015)
(citations and quotation marks omitted). “Because the claims are directed to
an abstract idea, the claims must include an ‘inventive concept’” in order to
be patent-eligible. No such inventive concept is present here. Instead, the
claims ‘add’ only generic computer components.” Mortgage Grader, Inc. v.
First Choice Loan Services Inc., 811 F.3d 1314, 1324 (Fed. Cir. 2016).
We are not persuaded by Appellants' argument that the claims recite
additional features that are not routine, conventional, or well known to the
industry. Reply Br. 6—7. The only argument here that is not conclusory is
that “the claims embody methods that include limitations requiring
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performance of affirmative steps. As a result, the claims include elements
that go well beyond merely comparing new and stored information to
identify options.” Id. at 7. To say the methods recite affirmative steps is no
more than saying the method claims recite steps, which is simply a
requirement of patent law. This does not evidence that the claims recite how
those steps are to be implemented.
We are not persuaded by Appellants' argument that the claims pose no
risk of pre-empting an abstract idea itself. Reply Br. 7—8. Appellants
contend that any implementation of the purported abstract idea, without
every limitation of the claims, remains available. This argument does no
more than contend that an even more abstract idea is buried within the
claims. That does not negate the abstract nature of the claims as drafted. To
the extent the argument is that the context of the claims is limited, that the
claims do not preempt all forms of the abstraction or may be limited to the
abstract idea in the particular setting do not make them any less abstract.
See OIP Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1360—1361
(2015).
Claims 1—20 rejected under 35 U.S.C. § 103(a) as unpatentable over
Michon and Milstein
Appellants argue claim 1 alone. Potential arguments as to the
remaining claims are waived.
We are not persuaded by Appellants' argument that Michon does not
teach or suggest determining that an active risk assessment array exists, and
specifically to represent a patient's risk of developing sepsis. App. Br. 9.
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The Specification does not lexicographically defined an active risk
assessment array. An array is defined as information together for
monitoring the symptoms that a user has in reference to a particular disease
or condition. FF 05. The definition does not further specify the nature of
the reference, or the particularity of the disease or condition. Thus,
information put together for monitoring a user’s symptoms, where those
symptoms might relate in some manner to some particular disease or
condition is within the scope of an array. And as the definition does not
further specify the nature of the monitoring, any information that would be
useful in monitoring such symptoms is within the scope of an array. The
plain meaning of an active risk assessment array is, then, information
actively put together that could be useful for assessing the risk from the
symptoms that a user has in reference to a particular disease or condition.
The claims do not recite or narrow the manner or implementation of
how they determine that an active risk assessment array exists. Thus, simply
accessing an array is within the scope of the recited determination. The
claims also do not recite or narrow the manner or implementation by which
the array is physically instantiated. Thus, a database of information
collected together, useful for monitoring the symptoms that a user has in
reference to some particular disease or condition, containing fields (nodes),
is within the scope of the recited array. Michon describes such a database
containing information from biological assays.
The recited active risk assessment array that is specific to sepsis does
not recite the nature of such specificity between the array and sepsis. As an
active risk assessment array may be information actively put together that
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could be useful for assessing the risk from the symptoms that a user has in
reference to a particular disease or condition, the recited specificity to sepsis
narrows the type of information to that which might be useful in assessing
the risk of sepsis, which is the presence of pathogenic microorganisms or
their toxins in tissues or in the blood. Thus, any information as to the
contents of blood or symptoms indicative of the presence or absence of such
microorganisms and toxins is within the claim scope. Michon’s biological
assay information contains at least this much information by its very
biological nature.
We are not persuaded by Appellants' argument that
Michon clearly does not include any teaching of an active risk
assessment array. Instead, Michon merely teaches that
algorithms or rules could be used to generate information of an
immune status. An active risk assessment array represents the
patient's risk of developing sepsis and is made up of multiple
nodes. Specification at || [0021] and [0037]. While Michon, at
best, teaches generating information as to the individual's
immune status, Michon does not put multiple nodes together to
make a single active risk assessment array, as is recited by
claim 1.
App. Br. 9—10. What the array represents is not at issue. Only whether the
art describes determining the existence of such an active array is at issue.
Every time the Michon’s database is accessed for a particular set of data,
that set is being actively used and the operating system is determining the
existence of that data. Thus, Michon describes determining the existence of
such an active array.
Appellants’ referral to Specification paras. 21 and 37 is unhelpful.
Both paragraphs describe an exemplary embodiment rather than a definition.
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We are not persuaded by Appellants' argument that because both
references are deficient as to an active risk assessment array, as detailed in
the above arguments, the other features also could not be taught by the cited
references. App. Br. 10. This argument simply restates the prior arguments
and makes those arguments the sole reason for finding other features to be
not present.
We are not persuaded by Appellants' argument that
Milstein is generally directed to detecting progression of a
disease state in an individual. See, Milstein, Abstract. At best,
Milstein teaches "the use of cluster of differentiation (CD)
molecules in detecting the presence and progression of one or
more disease states in an individual." Milstein, Abstract.
However, there is no explanation by the Office how the "use of
cluster of differentiation (CD) molecules in detecting the
presence and progression of one or more disease states in an
individual" correlates in any way to an active risk assessment
array. Office Action dated 6/2/2014, p. 5. While the above-cited
portions of Milstein, as well as other portions of Milstein, at
best, disclose how "detecting the extent of one or more disease
state," "assessing the progression of a disease state," etc.,
should be interpreted within Milstein, this is off point to the
above-recited feature of claim 1. The portions of Milstein cited
in the Office Action dated 6/2/2014 only teach that it is possible
to detect the severity of a disease within an individual, such as
distinguishing between a high grade and a low grade from of a
disease. However, how this is being done in Milstein is
completely different than that recited in claim 1, as there is no
active risk assessment array in Milstein. Even if there was this
teaching in Milstein, which Appellants disagree with, Milstein
clearly does not teach or suggest determining that an active risk
assessment array that is specific to sepsis is currently active. In
fact, Milstein is silent as to an active risk assessment array, and
as such, is also silent as to an array that is currently active.
App. Br. 11.
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This argument is unpersuasive here for the same reasons we found
supra. Appellants argue Milstein based on a more narrow interpretation of
the claims than admissible, as they did with Michon.
We are not persuaded by Appellants' argument that claim 1 recites
that not only is it determined whether the active risk assessment
array is active, but that an array being active or not is specific to
a duration of time within which sepsis can occur in the patient.
... For instance, claim 1 requires an active risk assessment
array to be active if it is to be used. After a particular duration
of time, the array is no longer active. For a particular individual,
disease, surgery, etc., a patient may no longer be at risk (or at a
high risk) of developing sepsis if the array is no longer active.
After that duration of time, the active risk assessment array for
sepsis would no longer be used, and as such, medical data (e.g.,
test results) would no longer be input into the nods of the array
if a patient's risk for developing sepsis is no longer relevant.
App. Br. 11—12. Again, Appellants arguments are not commensurate with
the scope of the invention. Claim 1 does not narrow or specify the nature of
being active. There is no recitation of how any length of time enters into
claim construction.
CONCLUSIONS OF LAW
The rejection of claims 1—20 under 35 U.S.C. § 101 as directed to
non—statutory subject matter is proper.
The rejection of claims 1—20 under 35 U.S.C. § 103(a) as unpatentable
over Michon and Milstein is proper.
20
Appeal 2015-006374
Application 13/269,262
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) (2015).
AFFIRMED
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