Ex Parte Horne et al

Patent Trials and Appeals Board

Feb 25, 2016

12210565 - (D) (P.T.A.B. Feb. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/210,565 09/15/2008
99434 7590 02/29/2016
McKesson Corporation and Alston & Bird LLP
c/o Alston & Bird LLP
Bank of America Plaza
101 South Tryon St., Suite 4000
Charlotte, NC 28280-4000
FIRST NAMED INVENTOR
Charles Christopher Horne
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.
050704/344855 6821
EXAMINER
LONG,FONYAM
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
02/29/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
usptomail@alston.com
PTOL-90A (Rev. 04/07)
lJNITEu STATES PATENT ANu TRAuEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES CHRISTOPHER HORNE,
DAVID PAUL CARLSON,
DENISE MARIE KLUBERTANZ,
PAMELA SUSAN-BRUSTMAN FREEMAN,
MURALI MARESH Y AKKALI,
and GEOFFREY EUGENE ATKIN
Appeal2013---005354
Application 12/210,565
Technology Center 3600
Before ANTON W. PETTING, NINA L. MEDLOCK, and
TARA L. HUTCHINGS, Administrative Patent Judges.
PETTING, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Charles Christopher Home, David Paul Carlson, Denise Marie
Klubertanz, Pamela Susan-Brustman Freeman, Murali Mahesh Y akkali, and
Geoffrey Eugene Atkin (Appellants) seek review under 35 U.S.C. § 134 of
the Examiner's Final rejection of claims 2--40, the only claims pending in
1 Our decision will make reference to the Appellants' Appeal Brief ("Br.,"
filed April 24, 2012) and the Examiner's Answer ("Ans.," mailed September
24, 2012) and Final Action ("Final Act.," mailed November 25, 2011).
Appeal2013-005354
Application 12/210,565
the application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellants invented a way of assigning staff members in association
with providing treatment to a plurality of patients within a healthcare
facility. Specification para. 2.
An understanding of the invention can be derived from a reading of
exemplary claim 2, which is reproduced below (bracketed matter and some
paragraphing added).
2. An apparatus comprising:
a processor configured to:
[ 1] receive a selection of one of a plurality of areas
within a healthcare facility for assigning at least one staff
member;
[2] after receiving a selection of one of a plurality of areas
within a healthcare facility,
identify one or more of a plurality of staff members
capable of facilitating the treatment of a patient
within the selected area;
[3] cause display of the one or more identified staff members
capable of facilitating the treatment of the patient within
the selected area;
[ 4] receive a selection of one of a plurality of peri---operative
phases associated with treatment of a patient;
and
[5] enable a user to assign
a selected one of the one or more identified staff
members
to facilitate treatment within the selected area
in association with the selected peri---operative phase,
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Application 12/210,565
independent of an association between respective areas
of the plurality of areas and respective peri---operative
phases of the plurality of peri---operative phases
and
independent of an association between respective peri-
operative phases and respective staff members of the
plurality of staff members.
The Examiner relies upon the following prior art:
Hunter US 2002/0040313 Al
Thompson US2004/0039628 Al
Meisel
Albro
US 2009/0089080 Al
US 2009/0106051 Al
Apr. 4, 2002
Feb.26,2004
Apr. 2, 2009
Apr. 23, 2009
Claims 2-9, 11-20, and 23-39 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Albro, Meisel, and Hunter.
Claims 10, 21, 22, 31, and 40 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Albro, Meisel, Hunter, and Thompson. 2
ISSUES
The issues of obviousness tum primarily on whether the references
describe selecting an area, phase, and qualified staff in a medical
environment.
2 The statement of the statutory basis for the rejection omits claims 22 and
40. Final Act. 7. The analysis includes these claims and so the omission is
taken as a clerical error.
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Application 12/210,565
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
"perioperative."
02. The ordinary meaning of "perioperative" is literally, around
(the time of) surgery. More specifically, the period of time
extending from when the patient goes into the hospital, clinic, or
doctor's office for surgery until the time the patient is discharged
home.3
Facts Related to the Prior Art
Albro
03. Albro is directed to improving organizational efficiencies of
delivering health care in an ambulatory health care setting by
providing comprehensive, intuitive, patient focused, and user
driven workflow tools. Albro para. 3.
04. Albro Fig. 2 shows patient flow through various areas of a
healthcare facility. Albro para. 60 and Fig. 2.
05. Albro describes a flow that models patient flow through the
healthcare areas in Fig. 2. Albro paras. 61-72 and Fig. 3.
3 http://www.medicinenet.com/script/main/art.asp?articlekey=22186
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Application 12/210,565
06. Albro describes a reception area interface that assigns all of the
patients scheduled for appointments to that area as of the time of
the scheduled appointment. Albro paras. 73-74 and Fig. 4.
07. Albro describes an interface showing resource room areas in a
healthcare facility to which patients are assigned. The image
summary view 350 can be organized by visit type or by the
provider seeing the patient. The image summary view 3 50
headings can be provider names. In such a case, selecting a
patient will automatically update resource display 352 to show the
exams rooms 354, 356 and/or resources 352 most used by the
provider seeing the patient. This feature allows for a less cluttered
interface, minimizes navigation, and speeds the work of the user.
This is especially important for drag-and-drop capability. The
user can navigate to non-associated or infrequently used
resources 376 by using an arrow scrollbar 376 on the right of the
resource listing 352. Albro paras. 87-92 and Fig. 8.
Meisel
08. Meisel is directed to dynamically controlling the work schedule
of staff in a medical care facility and more particularly, to
assigning medical staff sufficient to meet an initial workload
requirement, determining at a later time whether the assigned
medical staff is within tolerances for an updated workload
requirement, and notifying management staff if the assigned staff
is not within the tolerances for the updated workload requirement.
Meisel para. 1.
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Application 12/210,565
09. Determining the statling level requirement involves
determining the required staff hours per medical procedure and
summing the required staff hours by skill level or job role in the
procedure. Medical staff sufficient to meet the required staff
hours is scheduled for each procedure based upon skill level or job
role. Meisel para. 18.
Hunter
10. Hunter is directed to managing work schedules and rest periods
for groups of human resource units dispersed throughout a large
diverse work area. Hunter para. 3.
11. Hunter describes a user interface that allows a user to query the
database to generate a startup list, which allows an employee to
select their first position for the day. By choosing the "Get Next
assignment" button, the deployment system requests the next
available position for which the employee is qualified. In another
embodiment, available positions are displayed in a drop down list.
Only those positions which the employee is allowed to perform
appear in the list. The employee may choose a position from the
list and confirm the assignment. Hunter paras. 26-27
12. Hunter describes a user interface that allows a user to define
employees and assign those employees to selected roles. Hunter
paras. 37--40.
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Application 12/210,565
ANALYSIS
We are not persuaded by the Appellants' argument that the references
fail to show it was predictable to combine selecting an area for a staff
member, identifying staff members capable of facilitating treatment within
the selected area, and providing the user with a list of identified staff
members to choose from. Br. 16.
Claim 2 selects an area and a phase and identifies and displays capable
staff members. Then a user is enabled in some unspecified manner to assign
one of the staff members. Claim 2 does not recite or narrow the manner of
such enablement and does not recite the target of the staff member
assignment. The final limitation aspires to facilitate treatment within the
selected area in association with the selected phase, but does not recite a step
to accomplish this beyond making a staff member selection, and there is no
direct linkage recited between the selection and the facilitation. Claim 2 also
does not recite or narrow the manner or implementation of selections,
identifications, and displays. Thus, claim 2 selects an area and phase, and
displays and selects qualified staff members.
As the Examiner found, Hunter provides the user with a list to choose
from of assignments a staff member is identified as being capable of. FF 11.
Hunter also provides the user with a list of staff members to choose from to
assign roles. FF 12. Albro describes an interface that allows a user to assign
a patient to a healthcare area, which is the same as assigning the area to the
patient, as assignment is a commutative operation. FF 04---07. This results
in selecting an area. Albro also allows a user to assign a patient to a
workflow phase, such as check-in or check-out. Id. Again, this is equivalent
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to selecting a phase because of the commutative nature of assignment.
Albro therefore is within the scope of selecting an area and phase. The
Examiner took notice that perioperative phases are notoriously well known
instances of healthcare workflow phases. Final Act. 3--4. This leaves the
selection of capable staff members, which Hunter describes. FF 10-12.
Much of Appellants' arguments describe embodiment in the
Specification, but such limitations are not imported into the claims.
Though understanding the claim language may be aided by
explanations contained in the written description, it is important
not to import into a claim limitations that are not part of the
claim. For example, a particular embodiment appearing in the
written description may not be read into a claim when the claim
language is broader than the embodiment.
Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed.
Cir. 2004) (citation omitted).
We are not persuaded by the Appellants' argument that Albro and
Hunter cannot be combined because this would change their principle of
operation. Br. 18-22. "The test for obviousness is not whether the features
of a secondary reference may be bodily incorporated into the structure of the
primary reference.[] Rather, the test is what the combined teachings of those
references would have suggested to those of ordinary skill in the art." In re
Keller, 642 F.2d 413, 425, (CCPA 1981) (citation omitted). See also In re
Sneed, 710 F.2d 1544, 1550, (Fed. Cir. 1983) ("[I]t is not necessary that the
inventions of the references be physically combinable to render obvious the
invention under review.") (citation omitted); and In re Nievelt, 482 F.2d 965,
(CCP A 1973) ("Combining the teachings of references does not involve an
ability to combine their specific structures."). The Examiner applied Hunter
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only to show it was known to provide a selection of qualified service
providers. As Albro does not describe any particular implementation for
doing so, it was predictable to look to other references that provided
exemplary implementations for assigning staff members.
CONCLUSIONS OF LAW
The rejection of claims 2-9, 11-20, and 23-39 under 35 U.S.C. § 103(a)
as unpatentable over Albro, Meisel, and Hunter is proper.
The rejection of claims 10, 21, 22, 31, and 40 under 35 U.S.C. § 103(a)
as unpatentable over Albro, Meisel, Hunter, and Thompson is proper.
DECISION
The rejection of claims 2--40 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
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