Ex Parte HOFFMAN et al

Patent Trials and Appeals Board

May 13, 2019

13269244 - (D) (P.T.A.B. May. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/269,244 10/07/2011
46169 7590 05/15/2019
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
FIRST NAMED INVENTOR
MARK A. HOFFMAN
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.157950 8384
EXAMINER
MORGAN, ROBERT W
ART UNIT PAPER NUMBER
3626
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):
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 V. PEREZ,
and JOHN KUCKELMAN
Appeal2018-000396
Application 13/269 ,244 1
Technology Center 3600
Before HUBERT C. LORIN, ANTON W. PETTING, and
CYNTHIA L. MURPHY, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE2
Mark A. Hoffman, Hugh Ryan, Bharat Sutariya, Leo V. Perez, and
John Kuckelman (Appellants) seek review under 35 U.S.C. § 134 of the
1 According to Appellants, the real party in interest is Cemer Innovation,
Inc. (Appeal Br. 1 ).
2 Our decision will make reference to the Appellants' Appeal Brief filed
March 27, 2017 ("Br."); the Examiner's Answer mailed July 28, 2017
("Ans."); and the Final Office Action mailed September 26, 2016 ("Final
Act.").
Appeal2018-000396
Application 13/269,244
Examiner's Final 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).
We AFFIRM.
The Appellants invented a way of surveillance and monitoring of a
patient's risk for developing a particular disease or condition. Specification
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 carried out by a computing device having a
processor and a memory for enabling multi-site surveillance
and decision support for a patient's medical care,
the method comprising:
[ 1] receiving,
from a first client application residing on at least one
computing device associated with 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, having
one or more nodes, exists for the patient,
wherein the active risk assessment array represents the
patient's risk of developing a particular disease or condition,
and
wherein each node of the one or more nodes represents a
distinct parameter for the particular disease or condition or
patient information;
[3] determining that the active risk assessment array that is
specific to the particular disease or condition is currently
active,
wherein currently active is specific to a duration of time
within which the particular disease or condition can occur in
2
Appeal2018-000396
Application 13/269,244
the patient 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;
[ 4] receiving,
from a second client application residing on at least one
computing device associated with 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;
[5] determining,
based on cross-venue recognition,
that the first set of patient information and the second set of
patient information correspond to the patient;
[ 6] for a second node
of the active risk assessment array corresponding to the
second set of patient information,
populating the value of the second node with at least a
portion of the second set of patient information;
[7] determining that the patient has met actionable criteria for
being at risk for the particular disease or condition
based on at least the first and second nodes of the active risk
assessment array;
and
[8] providing a notification that the actionable criteria have
been met.
The Examiner relies upon the following prior art:
3
Appeal2018-000396
Application 13/269,244
Joao
Michon
US 2002/0032583 Al
US 2006/0218010 Al
Mar. 14, 2002
Sept. 28, 2006
Claims 1-20 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1-20 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Michon and Joao.
ISSUES
The issues of eligible subject matter tum primarily on whether the
claims recite more than abstract conceptual advice of what a computer is to
provide without implementation details.
The issues of obviousness tum primarily on whether Michon does not
teach or suggest determining that an active risk assessment array exists.
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 Appellants' Disclosure
01. 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
4
Appeal2018-000396
Application 13/269,244
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.
02. 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
03. Michon is concerned with immunological informatics,
and more particularly to acquiring, storing and utilizing
immunologic information of individuals and populations in
various commercial, research and governmental contexts.
Michon para. 2.
04. 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
5
Appeal2018-000396
Application 13/269,244
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.
05. 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 people think about medical
treatment. A number of immunological or immunological
related (in a broad sense) assays can be administered to an
6
Appeal2018-000396
Application 13/269,244
individual. Using modem technology such as, for example,
the MlM Analyzer marketed by BioVerisâ„¢ Corporation, of
Gaithersburg, Md., one can run 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.
06. 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.
Joao
07. J oao is directed to processing and/ or for providing
healthcare information and/or healthcare-related
information. Joao para. 2.
7
Appeal2018-000396
Application 13/269,244
ANALYSIS
Claims 1-20 rejected under 35 US.C. § 101 as directed to a judicial
exception without significantly more
STEPP.
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
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 Intl, 573 U.S. 208, 217-18 (2014)
(citations omitted) (citing Mayo Collaborative Services v. Prometheus
3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 FR 50 (Jan. 7, 2019)
("2019 Guidance").
8
Appeal2018-000396
Application 13/269,244
Laboratories, Inc., 566 U.S. 66 (2012)). To perform this test, we must first
determine what the claims are directed to. This begins by determining
whether the claims recite one of the judicial exceptions ( a law of nature, a
natural phenomenon, or an abstract idea). Then, if claims recite a judicial
exception, determining whether the claims at issue are directed to the recited
judicial exception, or whether the recited judicial exception is integrated into
a practical application of that exception, i.e., that the claims "apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception." 2019 Guidance 54. If the
claims are directed to a judicial exception, then finally determining whether
the claims provide an inventive concept because the additional elements
recited in the claims provide significantly more than the recited judicial
exception.
STEP 2A Prong 1
Method claim 1 recites receiving two sets of patient information and
determining they correspond to the patient; determining that an active risk
assessment array exists and is active; populating a node with data; and
determining and notifying that criteria have been met. Thus, claim 1 recites
receiving, analyzing, updating, and transmitting data. None of the
limitations recite technological implementation details for any of these steps,
but instead recite only results desired by any and all possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the 2019 Guidance, which extracts
9
Appeal2018-000396
Application 13/269,244
and synthesizes key concepts identified by the courts, abstract ideas include:
(1) mathematical concepts; 4 (2) certain methods of organizing human
activity; 5 and (3) mental processes. 6 Among those certain methods of
organizing human activity listed in the 2019 Guidance are managing
personal behavior or relationships and interactions between people. Like
those concepts claim 1 recites the concept of patient monitoring.
Specifically, claim 1 recites operations that would ordinarily take place in
advising one to look for an active risk assessment array from two separate
organizations and determining whether certain criteria have been met. The
advice to look for an active risk assessment array from two separate
organizations and determine whether certain criteria have been met involves
risk assessment, which is a managerial act, and determining whether criteria
are met, which is an act ordinarily performed in the stream of management
by patient monitoring. For example, claim 1 recites "receiving ... patient
information," which is an activity that would take place whenever one is
managing healthcare personnel. Similarly, claim 1 recites "determining that
an active risk assessment array, having one or more nodes, exists for the
4 See, e.g., Gottschalkv. Benson, 409 U.S. 63, 71-72 (1972); Bilski v.
Kappas, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); and SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); and In re Marco Guldenaar Holding B. V., 911 F.3d 1157, 1160-61
(Fed. Cir. 2018).
6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371-72 (Fed. Cir. 2011); and Intellectual Ventures I
LLCv. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
10
Appeal2018-000396
Application 13/269,244
patient" and "determining ... that the first set of patient information and the
second set of patient information correspond to the patient," which are also
characteristics of patient monitoring in healthcare management.
The Examiner determines the claims to be directed to comparing new and
stored information and using rules to identify options. Final Act. 3.
The preamble to claim 1 recites that it is a method carried out by a
computing device having a processor and a memory for enabling multi-site
surveillance and decision support for a patient's medical care. The steps in
claim 1 result in determining and notifying that the patient has met
actionable criteria for being at risk for the particular disease or condition
absent any technological mechanism other than a conventional computer for
doing so.
As to the specific limitations, limitations 1---6 and 8 recite insignificant
receiving, analyzing, updating, and transmitting of medical data including an
active risk assessment array, which advise one to apply generic functions to
get to these results. Limitation 7 is the only step associated with performing
what the claim produces and recites determining that the active risk
assessment array that is specific to the particular disease or condition is
currently active, which is simply checking data that criteria are met. The
limitations thus recite advice for looking for an active risk assessment array
from two separate organizations and determining whether certain criteria
have been met. To advocate looking for an active risk assessment array
from two separate organizations and determining whether certain criteria
have been met is conceptual advice for results desired and not technological
operations.
11
Appeal2018-000396
Application 13/269,244
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 intrinsic evidence shows that claim 1 is
directed to monitoring a patient's health risk, i.e. patient monitoring. This is
consistent with the Examiner's determination.
This in tum is an example of managing personal behavior or relationships
or interactions between people as a certain method of organizing human
activity because monitoring patients is a process requiring coordination of
patient, doctor, and related healthcare providers. The concept of patient
monitoring as advised to be done by looking for an active risk assessment
array from two separate organizations and determining whether certain
criteria have been met is an idea for taking advantage of two separate data
sources to coordinate the efforts of plural diagnostic efforts. The steps
recited in claim 1 are part of using data from this idea.
Alternately, this is an example of concepts performed in the human mind
as mental processes because the steps of receiving, analyzing, updating, and
transmitting data mimic human thought processes of observation, evaluation,
judgment, and opinion, perhaps with paper and pencil, where the data
interpretation is perceptible only in the human mind. See In re TL!
Communications 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). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, analysis,
modification, and transmission 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
12
Appeal2018-000396
Application 13/269,244
not directed to an abstract idea because they "focused on a specific asserted
improvement in computer animation."). As such, claim 1 is directed to
receiving, analyzing, updating, and transmitting data, and not a technological
implementation or application of that idea.
From this we conclude that at least to this degree, claim 1 is directed
to patient monitoring by looking for an active risk assessment array from
two separate organizations and determining whether certain criteria have
been met.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept; or, in the words of the 2019 Guidance, "integrated into a
practical application". 7
At the same time, we tread carefully in construing
this exclusionary principle lest it swallow all of patent
law. At some level, "all inventions ... embody, use,
reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas." Thus, an invention is not
rendered ineligible for patent simply because it involves
an abstract concept. "[ A Jpplication[ s ]" of such concepts
"'to a new and useful end,"' we have said, remain
eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents
that claim the "'buildin[g] block[s]"' of human ingenuity
and those that integrate the building blocks into
something more.
Alice, 573 U.S. at 217 ( citations omitted).
7 See, e.g., Alice, 573 U.S. at 223 (citing Diamond v. Diehr, 450 U.S. 175
(1981)).
13
Appeal2018-000396
Application 13/269,244
The introduction of a computer into the claims does not generally 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, 573 U.S. at 223-24 ( 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, 573 U.S. at 225. They do not.
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Steps 1, 2, 4, and 5 are pure data
gathering steps. Limitations describing the nature of the data do not alter
this. Step 8 is insignificant post solution activity, such as storing,
transmitting, or displaying the results. Steps 3, 6, and 7 recite generic
computer processing expressed in terms of results desired by any and all
possible means and so present no more than conceptual advice. All
purported inventive aspects reside in how the data is interpreted and the
14
Appeal2018-000396
Application 13/269,244
results desired, and not in how the process physically enforces such a data
interpretation or in how the processing technologically achieves those
results.
Viewed as a whole, Appellants' claim 1 simply recites the concept of
patient monitoring by looking for an active risk assessment array from two
separate organizations and determining whether certain criteria have been
met as performed by a generic computer. This is no more than conceptual
advice on the parameters for this concept and the generic computer
processes necessary to process those parameters, and do not recite any
particular implementation.
Claim 1 does not, for example, purport to improve the functioning of the
computer itself. Nor does it affect an improvement in any other technology
or technical field. The 37 pages of Specification spell out different generic
equipment and parameters that might be applied using this concept and the
particular steps such conventional processing would entail based on the
concept of patient monitoring by looking for an active risk assessment array
from two separate organizations and determining whether certain criteria
have been met under different scenarios. 8 They do not describe any
particular improvement in the manner a computer functions. Instead, claim
1 at issue amounts to nothing significantly more than an instruction to apply
patient monitoring by looking for an active risk assessment array from two
separate organizations and determining whether certain criteria have been
met using some unspecified, generic computer. Per controlling case law,
8 The Specification describes including handheld devices, consumer
electronics, general-purpose computers. Spec. para. 26.
15
Appeal2018-000396
Application 13/269,244
that is not enough to transform an abstract idea into a patent-eligible
invention. See e.g., Alice, 573 U.S. at 225-26.
None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
exception in some other meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 1 is directed to achieving the result of patient
monitoring by advising one to looking for an active risk assessment array
from two separate organizations and determining whether certain criteria
have been met as distinguished from a technological improvement for
achieving or applying that result. This amounts to managing personal
behavior or relationships or interactions between people, which fall within
certain methods of organizing human activity that constitute abstract ideas.
The claim does not integrate the judicial exception into a practical
application.
STEP 2B
The next issue is whether claim 1 provides an inventive concept because
the additional elements recited in the claim provide significantly more than
the recited judicial exception. Taking the claim elements separately, the
16
Appeal2018-000396
Application 13/269,244
function performed by the computer at each step of the process is purely
conventional. Using a computer for receiving, analyzing, updating, and
transmitting data amounts to electronic data query and retrieval----one of the
most basic functions of a computer. All of these computer functions are
generic, routine, conventional computer activities that are performed only
for their conventional uses. See Elec. Power Group v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016); see also In re Katz Interactive Call Processing
Patent Litigation, 639 F.3d 1303, 1316 (Fed. Cir. 2011) ("Absent a possible
narrower construction of the terms 'processing,' 'receiving,' and 'storing,'
[]those functions can be achieved by any general purpose computer without
special programming."). None of these activities are used in some
unconventional manner nor do any produce some unexpected result.
Appellants do not contend they invented any of these activities. In short,
each step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, "even if a process of
collecting and analyzing information is 'limited to particular content' or a
particular 'source,' that limitation does not make the collection and analysis
other than abstract." SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161,
1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellants' claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
modification-transmission is equally generic and conventional. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(sequence of receiving, selecting, offering for exchange, display, allowing
access, and receiving payment recited an abstraction); Inventor Holdings,
17
Appeal2018-000396
Application 13/269,244
LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017)
(sequence of data retrieval, analysis, modification, generation, display, and
transmission); and Two-Way Media Ltd. v. Comcast Cable Communications,
LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing,
controlling, and monitoring). The ordering of the steps is therefore ordinary
and conventional.
We conclude that claim 1 does not provide an inventive concept because
the additional elements recited in the claim do not provide significantly more
than the recited judicial exception.
REMAINING CLAIMS
Claim 1 is representative. The remaining method claims merely describe
process parameters. We conclude that the method claims at issue are
directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
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 "warn[ ed] ... against" interpreting
§ 101 "in ways that make patent eligibility 'depend simply on
the draftsman's art."'
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
18
Appeal2018-000396
Application 13/269,244
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by patient monitoring
by advising one to looking for an active risk assessment array from two
separate organizations and determining whether certain criteria have been
met, without significantly more.
APPELLANTS' ARGUMENTS
As to Appellants' Appeal Brief arguments, we adopt the Examiner's
determinations and analysis from Final Action page 3 and Answer pages 27-
34 and reach similar legal conclusions. In particular, we note the following.
We are not persuaded by Appellants' argument that "the claims are not
directed to any long-standing fundamental practice that existed independent
of computer technology. It cannot be reasonably said that the problems
caused by changing operational instructions for claims processing rules is a
long-standing fundamental practice that exists independent of computer
technology." Br. 12 (emphasis omitted). As we determined supra, the
claims are directed to monitoring patients. This is a long-standing
fundamental practice that existed independent of computer technology. This
is recited as being done by advising one to look for an active risk assessment
array from two separate organizations and determine whether certain criteria
have been met using some unspecified, generic computer. But this is
conceptual advice to use this idea devoid of technological implementation
details. As to changing operational details in response to rules as to how to
adapt to conditions, this is age old contingency planning, again predating
computer technology.
19
Appeal2018-000396
Application 13/269,244
Claims 1-20 rejected under 35 USC§ 103(a) as unpatentable over
Michon and Joao
We adopt the Examiner's determinations and analysis from Final
Action pages 4--26 and Answer pages 34--38 and reach similar legal
conclusions. In particular, we note the following.
We are not persuaded by Appellants' argument that Michon does not
teach or suggest determining that an active risk assessment array exists. Br.
14.
The Specification does not lexicographically define 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. 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
20
Appeal2018-000396
Application 13/269,244
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.
We are not persuaded by Appellants' argument that
the algorithms and rules of Michon are applied to assay results
and stored medical data, and as such is not "an active risk
assessment array," in that the algorithms do not relate to a
patient who has received treatment at a first medical
organization. See generally, Michon. Additionally, the active
risk assessment array of independent claim 1 represents the
patient's risk of developing a particular disease or condition and
is made up of multiple nodes. See claim 1 and as-filed
Specification at ,r,r [0021] and [0037]. Michon does not use
multiple nodes together to make a single active risk assessment
array, as is recited by claim 1.
Br. 16. 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 paragraphs 21 and 3 7 is
unhelpful. Both paragraphs describe an exemplary embodiment rather than
a definition. The argument as to multiple nodes fails to consider that the
claims do not narrow the scope of nodes. As we find supra, the fields in
Michon are within the scope of such multiple nodes.
21
Appeal2018-000396
Application 13/269,244
CONCLUSIONS OF LAW
The rejection of claims 1-20 under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more is proper.
The rejection of claims 1-20 under 35 U.S.C. § 103(a) as unpatentable
over Michon and Joao is proper.
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) (2011).
AFFIRMED
22