Ex Parte Lord et alDownload PDFPatent Trial and Appeal BoardFeb 28, 201813125819 (P.T.A.B. Feb. 28, 2018) Copy Citation 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. 13/125,819 04/25/2011 William P. Lord 2008P01322WOUS 7916 24737 7590 03/02/2018 PTTTT TPS TNTFT T FfTTTAT PROPFRTY fr STANDARDS EXAMINER 465 Columbus Avenue BLACK-CHILDRESS, RAJSHEED O Suite 340 Valhalla, NY 10595 ART UNIT PAPER NUMBER 2684 NOTIFICATION DATE DELIVERY MODE 03/02/2018 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): patti. demichele @ Philips, com marianne. fox @ philips, com katelyn.mulroy @philips .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte WILLIAM P. LORD, CHARLES LAGOR, and JOSEPH ROCK Appeal 2016-001351 Application 13/125,819 Technology Center 2600 Before JOSEPH L. DIXON, JASON V. MORGAN, and AARON W. MOORE, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-001351 Application 13/125,819 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. The claims are directed to a method and system for simultaneous guideline execution. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method, comprising: retrieving, by a processor, a plurality of sets of recommendations, each of the sets of recommendations corresponding to one of a plurality of conditions of a patient or a group of patients, wherein at least two of the sets of recommendations are directed at different healthcare personnel; simultaneously executing the plurality of sets of recommendations, wherein the simultaneously executed sets of recommendations include sets of recommendations corresponding to a first and second condition of the patient, where the set of recommendations corresponding to the first condition operate independently from the set of recommendations corresponding to the second condition; displaying a first one of the sets of recommendations; monitoring data related to each of the plurality of sets of recommendations; determining, based on the monitored data, whether a second one of the sets of recommendations is to be displayed; and displaying the second one of the sets of recommendations. 2 Appeal 2016-001351 Application 13/125,819 REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Campbell et al. US 6,047,259 Apr. 4, 2000 Klug US 2007/0074211 Al Mar. 29, 2007 Fors et al. US 2007/0168223 Al July 19, 2007 Scherpbier et al. US 2008/0040160 Al REJECTIONS1 Feb. 14, 2008 The Examiner made the following rejections: Claims 1—4, 7—14, and 16—20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Scherpbier in view of Klug and Campbell. Claims 5, 6, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Scherpbier in view of Klug and Campbell as applied to claims 1 and 13 above, and further in view of Fors. ANALYSIS Claims 1—4, 7—14, and 16—20 With respect to independent claims 1,13, and 20, Appellants rely upon the arguments for independent claim 1. (App. Br. 13—14). Furthermore, independent claims 13 and 20 have similar recitations to the disputed recitations of claim 1. Therefore, we select independent claim 1 as the illustrative claim and address Appellants’ arguments thereto. 1 The Examiner has not made a rejection based upon 35 U.S.C. § 101 for a lack of patent eligible subject matter throughout the prosecution of the application. The Examiner should consider the appropriateness of a rejection as the claim language is interpreted in light of the Specification. The Examiner should further consider whether the claimed invention is directed to mere presentation of non-functional descriptive material on a display to users or used with monitoring patient information. (Spec 1 8). 3 Appeal 2016-001351 Application 13/125,819 Appellants contend the prior art references do not disclose or suggest the claimed “simultaneously executing the plurality of sets of recommendations, wherein the simultaneously executed sets of recommendations include sets of recommendations corresponding to a first and second condition of the patient.” (App. Br. 4—9). Appellants further contend that the Klug and Campbell references do not teach or suggest “simultaneously executing the plurality of sets ...” (App. Br. 9-14). In response to Appellants’ argument that the Scherpbier reference does not teach the claimed invention, the Examiner maintains that: the rejection admitted as much, the rejection went on to show how one skilled in the art at the time of the claimed invention, applying the knowledge and skill level of one skilled in the art to the Scherpbier reference teachings, would have modified the system/method of S[c]herpbier to include a scenario where the patient happens to be suffering from two medical conditions to identify the corresponding two sets of recommendation treatments from the database of plurality of medical conditions, and based on the suggestion of applying two or more recommendations simultaneously to a patient when suffering from only one medical condition (e.g. when the recommendation have no conflict or adverse effects on each other or to the patient), to also apply the two or more independent recommendation treatments of two medical conditions simultaneously to the patient, if they, e.g., also do not have conflict or adverse effects on each other or to the patient. (Ans. 3—4). In response to Appellants’ contention that the Examiner has not provided evidence or explained how the Scherpbier system would execute simultaneous and separate multiple guidelines for treatment of a single patient, the Examiner maintains: One skilled in the art would have readily recognized that so long as the separate and independent recommendations for 2 medical 4 Appeal 2016-001351 Application 13/125,819 conditions do not pose a conflict to each other and to the patient, executing simultaneously the independent multiple sets of treatment for the 2 medical conditions for a patient would have been no different from executing each of 1 set of treatment guidelines for 1 out of 2 medical conditions for the patient, except for executing them simultaneously. As a very simple example for illustrative purpose, administering a pain reliever for back pain or muscle ache and recommending bed rest, and administering medication for a severe cold and recommending bed rest and hot soup, both back/muscle pain and cold conditions happen to be suffered by the same patient at the same time, can be executed simultaneously as though they are executed singularly, so long as there are no foreseen adverse interactive side-effects from the simultaneous administering. (Ans. 4). Appellants respond to the Examiner’s example where a single patient is suffering from two medical conditions, as discussed above, and contend that the Examiner has not provided some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness and that the Examiner makes a conclusory statement without providing additional evidence within the prior art reference for the Examiner’s conclusion. (Reply Br. 6—7). Appellants further contend that: The mere possibility that a patient could suffer from multiple conditions is insufficient evidence or indication of the simultaneous and independent execution of multiple guidelines, where each guideline corresponds to a patient condition. In addition, Scherpbier does not disclose a single patient that has multiple conditions at the same time; in each reference to executing patient guidelines, Scherpbier discloses a guideline for treating a single medical condition. (See Scherpbier, || 5, 19, 33- 35, Abstract; Fig. 9). (Reply Br. 6—7). 5 Appeal 2016-001351 Application 13/125,819 “[Rejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) {quoted with approval in KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)). “A rejection based on section 103 clearly must rest on a factual basis.” In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not. . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.” Id. “The review authorized by 35 U.S.C. Section 134 is not a process whereby the examiner . . . invite[s] the [Bjoard to examine the application and resolve patentability in the first instance.” Ex parte Braeken, 54 USPQ2d 1110, 1112 (BPAI 1999). We agree with Appellants that the Examiner speculates with respect to the prior art references and relies upon unsubstantiated extrapolations regarding a patient’s health. While we would agree with the Examiner that a patient may have two independent medical conditions simultaneously, that does not necessarily teach or suggest a modification to the prior art references which merely disclose a method and an interface for a single patient regarding a single condition. As a result, we cannot sustain the Examiner’s obviousness rejection based upon the Scherpbier, Klug, and Campbell references because the 6 Appeal 2016-001351 Application 13/125,819 Examiner has not shown that the prior art teaches or suggests all the claimed limitations as recited in the language of illustrative independent claim l.2 Claims 5, 6, and 15 The Examiner does not rely upon the Fors reference to remedy the deficiency noted above. (Final Act. 19-20). As a result, we cannot sustain the Examiner’s rejection of dependent claims 5, 6, and 15 for the reasons discussed above with respect to independent claim 1. CONCLUSION The Examiner erred in rejecting claims 1—20 based upon obviousness under 35 U.S.C. § 103. DECISION For the above reasons, we reverse the Examiner’s rejection of claims 1—20 based upon obviousness under 35 U.S.C. § 103. REVERSED 2 Moreover, if the Examiner desires to take official notice or provide additional prior art to support the Examiner’s speculation, the Examiner may support the Examiner’s position in further prosecution on the merits. We additionally note that the Fors reference, which is relied upon with respect to the rejection of dependent claims 5, 6, and 15, teaches and suggests that certain steps in computer operation may be performed “simultaneously” (Fors 1130 (“certain steps may be performed in a different temporal order, including simultaneously”) and 1171 (“a plurality of applications may be executed simultaneously and/or in conjunction based on a user action via an interface”)). 7 Copy with citationCopy as parenthetical citation