Ex Parte Moore et al

Patent Trials and Appeals Board

Jun 24, 2019

14551541 - (D) (P.T.A.B. Jun. 24, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/551,541 11/24/2014
26201 7590 06/26/2019
FISH & RICHARDSON P.C. (AU)
P.O BOX 1022
Minneapolis, MN 55440-1022
FIRST NAMED INVENTOR
Stephen Trey Moore
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.
23956-0076002 7506
EXAMINER
COLEMAN, CHARLES P.
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
06/26/2019 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):
P ATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN TREY MOORE, WILLIAM CAMERON POWELL,
DANIEL LEE BLAKE, NEIL R. MCQUEEN,
AUGUSTINE VIDAL PEDRAZA IV, and ALAN WILLIAMS PORTELA
Appeal2017-010036
Application 14/551,541 1
Technology Center 3600
Before HUNG H. BUI, DAVID J. CUTITT A II, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 20-39, which are all the claims pending
in the application. App. Br. 24--33 (Claims App.). We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM. 2
1 According to Appellants, AirStrip IP Holdings, LLC is the real party in
interest. App. Br. 4.
2 Our Decision refers to Appellants' Appeal Brief filed January 12, 2017
("App. Br."); Reply Brief filed July 18, 2017 ("Reply Br."); Examiner's
Answer mailed May 18, 2017 ("Ans."); Final Office Action mailed August
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Application 14/551,541
STATEMENT OF THE CASE
Appellants' invention relates to methods for providing a user of a
mobile device access to integrated and unified views of patient information
and patient physiological data from a plurality of data sources across the
healthcare continuum. Spec. ,r,r 4, 19. According to Appellants, because
each entity or organization has its own stand-alone information system that
provides an electronic medical records (EMR) specific to that information
system, format and syntax of one EMR can be different from the format and
syntax of another EMR or data sources. Id. ,r,r 55, 85. As such, by having
"vocabulary services modules 328, 338 perform translation between the
vendor-specific vocabularies and a standard vocabulary," Appellants'
invention enables "patient data/information retrieved through the modules
303, 305 use standard vocabulary to be provided back to the mobile device
102 in a unified manner." Id. at 55.
Claims 20, 29, and 3 5 are independent. Claim 20 is illustrative of the
claimed subject matter, as reproduced below with the disputed limitation in
italics:
20. A computer-implemented method for providing
patient information and patient physiological data to a mobile
device, the method being executed by one or more processors
and comprising:
receiving, by the one or more processors, a user request of
a user, the user request being received in response to user input
to the mobile device;
determining, by the one or more processors, that the user
request is requesting first patient data stored within a first
patient record module of a first facility system and second patient
12, 2016 ("Final Act."); and original Specification filed November 24, 2014
("Spec.").
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data stored within a second patient record module of a second
facility system, [1] the first patient data and the second patient
data being particular to a patient, the first patient record module
being of a different type of patient record module than the second
patient record module;
processing, by an adapter module, the user request to
provide a first request for the first patient data and a second
request for the second patient data, the first request comprising
first credentials required to access the first patient data and the
second request comprising second credentials required to access
the second patient data, the adapter module enabling retrieval of
the first patient data and the second patient data from the first
facility system and the second facility system respectively;
transmitting, by the adapter module, the first request to a
first host module of the first facility system, and the second
request to a second host module of the second facility system, the
first host module and the second host module respectively
orchestrating processing of the first request and the second
request received from the adapter module;
[2] receiving, by the adapter module, the first patient data
from the first host module of the first facility system and the
second patient data from the second host module of the second
facility system, the first patient data having been at least partially
translated in response to the first request and by a first
vocabulary service module located at the first facility system,
from a first vendor-specific vocabulary to a standard vocabulary
and the second patient data having been at least partially
translated in response to the first request and by a first
vocabulary service module located at the first facility system,
from a second vendor-specific vocabulary to the standard
vocabulary, the second vendor-specific vocabulary comprising
the terminology different than the first vendor-specific
vocabulary;
providing, by the one or more processors, a response
comprising the first patient data, the second patient data and
additional data, the first patient data and the second patient data
being provided in a unified manner corresponding to the standard
vocabulary and the additional data being processable to generate
one or more data visualizations particular to the patient and
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displayed on the mobile device based on the first patient data and
the second patient data; and
transmitting, by the one or more processors, the response
to the mobile device.
App. Br. 24--25 (Claims App.) (bracketing added).
EVIDENCE CONSIDERED
Powell et al. ("Powell") US 2011/0246235 Al Oct. 6, 2011
Beardall et al. ("Beardall") US 2013/0166317 Al June 27, 2013
EXAMINER'S REJECTIONS
(1) Claims 20-39 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to an abstract idea without significantly more.
Final Act. 2--4.
(2) Claims 20-39 stand rejected under 35 U.S.C. § I03(a) as being
obvious over Powell and Beardall. Final Act. 5-9.
DISCUSSION
Patent-Eligible Subject Matter
In support of the§ 101 rejection of claims 20-39, the Examiner
determines these claims are directed to "information processing" for
"providing patient information and patient physiological data to [ a user of] a
mobile device" which is considered a series of "mental processes" that could
be performed in the human mind or by a human using a pen and paper, and
include limitations that are analogous or similar to ( 1) concepts of
comparing new and stored information and using rules to identify options as
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discussed in SmartGene; and (2) concepts of collecting information,
analyzing it, and displaying certain results of the collection and analysis as
discussed in Electric Power Group. Final Act. 3; Ans. 8; see SmartGene,
Inc. v. Advanced Biological Labs., SA, 852 F.Supp.2d 42 (D.D.C. 2012),
aff'd, 555 F. App'x 955 (Fed. Cir. 2014) (holding that claims directed to
"comparing new and stored information and using rules to identify medical
options" are not patent-eligible); Elec. Power Grp., LLC v. Alstom S.A., 830
F.3d 1350, 1354 (Fed. Cir. 2016)) (holding that claims directed to "gathering
and analyzing information of a specified content, then displaying the results"
are patent-ineligible under Section 101).
The Examiner also determines the claims fail to amount to
"significantly more than the judicial exception" or contain an "inventive
concept" because the additional elements recited ( e.g., processors) (1) are
generic computer elements that perform generic computer functions that are
"well-understood, routine and conventional activities previously known to
the industry" and (2) do not improve the functioning of a computer or
improve any other technology. Final Act. 4; Ans. 9-20.
Appellants argue independent claims 20, 29, and 35 together (App.
Br. 13-17). We select claim 20 as representative. Claims 21-39 stand or
fall with claim 20 (see 37 C.F.R. § 4I.37(c)(l)(iv)).
Legal Framework
To determine whether claims are patent eligible under § 101, we apply
the Supreme Court's two-step framework articulated in Alice Corp. v. CLS
Bankint'l, 573 U.S. 208 (2014). First, we determine whether the claims are
directed to a patent-ineligible concept: laws of nature, natural phenomena,
and abstract ideas. Id. at 217. If so, we then proceed to the second step to
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consider the elements of the claims "individually and 'as an ordered
combination'" to determine whether there are additional elements that
"'transform the nature of the claim' into a patent-eligible application." Id.
In other words, the second step is to "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."' Id. at 217-18 ( alteration in original)
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66,
72-73 (2012)).
The Federal Circuit has described the Alice step-one inquiry as
looking at the "focus" of the claims, their "character as a whole," and the
Alice step-two inquiry as looking more precisely at what the claim elements
add-whether they identify an "inventive concept" in the application of the
ineligible matter to which the claim is directed. See Elec. Power Grp., 830
F.3d at 1353; Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327, 1335-36 (Fed.
Cir. 2016); Internet Pat. Corp. v. Active Network, Inc., 790 F.3d 1343, 1346
(Fed. Cir. 2015).
Because there is no single definition of an "abstract idea" under Alice
step 1, the Federal Circuit has adopted the common law, analogy-driven
approach (i.e., the "analogous claim" test) to determine whether a claim is
directed to an abstract idea, and has instructed us "to examine earlier cases
in which a similar or parallel descriptive nature can be seen-what prior
cases were about, and which way they were decided." Amdocs (Israel) Ltd.
v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (citing Elec.
Power Grp., 830 F.3d at 1353-54). The Office sought to apply the Federal
Circuit's common law "analogous claim" test in the aftermath of Alice (see
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USPTO Memorandum, July 2015 Update: Subject Matter Eligibility,
USPTO 3 (2015), https://www.uspto.gov/sites/default/files/documents/ieg-
july-2015-update.pdf ("a claimed concept is not identified as an abstract idea
unless it is similar to at least one concept that the courts have identified as an
abstract idea")). But recently, the Office concluded that having Examiners
seek analogous claims had since become impractical and unpredictable in
light of the growing body of Federal Circuit precedent. Thus, the Office
recently published revised guidance interpreting governing case law and
establishing a framework to govern all patent-eligibility analysis under Alice
and§ 101 effective as of January 7, 2019. USPTO, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50-57 (Jan. 7, 2019)
("Revised Guidance").
Revised Guidance
Under the Revised Guidance, we first look under Alice step 1 or "Step
2A" to whether the claim recites:
(1) Prong One: any judicial exceptions, including certain
groupings of abstract ideas (i.e., [i] mathematical concepts,
[ii] mental processes, or [iii] certain methods of organizing
human activity such as a fundamental economic practice or
managing personal behavior or relationships or interactions
between people); and
(2) Prong Two: additional elements that integrate the judicial
exception into a practical application (see Manual of Patent
Examining Procedure ("MPEP") §§ 2106.05(a}-(c), (e}-
(h)). 3
3 All references to the MPEP are to the Ninth Edition, Revision 08.2017
(rev. Jan. 2018).
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See Revised Guidance, 84 Fed. Reg. at 51-52, 55, Revised Step 2A, Prong
One (Abstract Idea) and Prong Two (Integration into A Practical
Application). Only if a claim: (1) recites a judicial exception, and (2) does
not integrate that exception into a practical application, do we then evaluate
whether the claim provides an "inventive concept" under Alice step 2 or
"Step 2B." See 2019 Revised Guidance at 56; Alice, 573 U.S. at 217-18.
For example, we look to whether the claim:
1) adds a specific limitation beyond the judicial exception that
is not "well-understood, routine, conventional" in the field
(see MPEP § 2106.05(d)); or
2) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a
high level of generality, to the judicial exception.
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Alice/May~tep 1 (Abstract Idea)
Step 2A-Prongs 1 and 2 identified in the Revised Guidance
Step 2A, Prong One
Turning to the first step of the Alice inquiry, Appellants argue the
claims are not directed to an abstract idea because the Examiner (1)
"overgeneralizes ... and over-simplifies the claims"; and (2) "fails to recite
'an appropriate court decision that supports the identification of the subject
matter recited in the claim language as an abstract idea,' as instructed in the
May 2016 Update." App. Br. 15-18.
Appellants' arguments are not persuasive. At the outset, we note the
newly published Revised Guidance governs all PTO patent-eligibility
analysis under Alice and§ 101 effective as of January 7, 2019. In particular,
the PTO has acknowledged that the Federal Circuit's common law, analogy-
driven approach was effective soon after Alice was decided by the Supreme
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Court, but that approach has since become impractical as the growing body
of Federal Circuit precedent has become increasing more difficult for the
Office and Examiners to apply in a predictable manner. As a result, the PTO
has synthesized, for purposes of clarity, predictability, and consistency, the
"abstract idea" exception to include three categories of abstract ideas: (1)
mathematical concepts; (2) mental processes; and (3) certain methods of
organizing human activity-fundamental economic principles as outlined in
the Revised Guidance (84 Fed. Reg. at 54--55).
Contrary to Appellants' arguments, Appellants' Specification and
claims describe displaying patient data to a healthcare provider in the
context of healthcare services "on a mobile device in an integrated and
unified manner." Spec. ,r,r 86-87. For example, Appellants' independent
claim 20 defines a computer-implemented method comprising:
receiving ... a user request of a user, the user request being
received in response to user input to the mobile device;
determining ... that the user request is requesting first patient
data ... the first ... module being of a different type of patient
record module than the second patient record module;
processing, by an adapter module, the user request ... the
adapter module enabling retrieval of the first patient data and
the second patient data from the first facility system and the
second facility system respectively;
transmitting, by the adapter module, the first request to a first
host module ... the second request to a second host module ...
processing of the first request and the second request received
from the adapter module;
receiving, by the adapter module, the first patient data ... and
the second patient data ... ;
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providing ... a response comprising the first patient data, the
second patient data and additional data ... displayed on the
mobile device based on the first patient data and the second
patient data; and
transmitting ... the response to the mobile device.
App. Br. 24--25 (Claims App.). Method claim 20 and Beauregard and
system claims 29 and 35 recite similar limitations.
As correctly recognized by the Examiner (Ans. 8), the steps of:
receiving a user request, determining the user request is request
patient data stored within a patient record module, processing the
user request to provide stored patient data, transmitting the user
request to first and second facilities, receiving stored patient data,
providing a response comprising stored patient data and
additional data, transmitting the response
as recited in Appellants' claims 20, 29, and 35, are nothing more than a
series of "mental processes" that could be performed in the human mind or
by a human using a pen and paper-a subject matter that falls within the
three types of abstract ideas identified by the Revised Guidance. See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir.
2011) ("[A] method that can be performed by human thought alone is
merely an abstract idea and is not patent-eligible under§ 101."); see also In
re Comiskey, 554 F.3d 967, 979 (Fed. Cir. 2009) ("[M]ental processes-or
processes of human thinking-standing alone are not patentable even if they
have practical application."); Gottschalk v. Benson, 409 U.S. 63, 67 (1972)
("Phenomena of nature, ... mental processes, and abstract intellectual
concepts are not patentable, as they are the basic tools of scientific and
technological work." (Emphasis added)). Additionally, mental processes
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remain unpatentable even when automated to reduce the burden on the user
of what once could have been done with pen and paper. CyberSource, 654
F.3d at 1375 ("That purely mental processes can be unpatentable, even when
performed by a computer, was precisely the holding of the Supreme Court in
Gottschalk v. Benson.").
For example, Appellants' steps of "receiving ... a user request of a
user, the user request being received in response to user input to the mobile
device;" "determining ... that the user request is requesting first patient
data" and "transmitting ... the first request to a first host module ... the
second request to a second host module" and "processing of the first request
and the second request received from the adapter module" recited in
Appellants' method claim 20 can be performed by a human in a healthcare
facility who is simply asked to record a healthcare service record of a
patient. Similarly, steps of "receiving, by the adapter module, the first
patient data ... and the second patient data"; and "providing ... a response
comprising the first patient data, the second patient data and additional data .
. . displayed on the mobile device based on the first patient data and the
second patient data" can be performed by a facility record-gatherer who
receives the record request and compiles the record accordingly.
Thus, under Step 2A, Prong One, we agree with the Examiner the
claims recite a judicial exception identified as an abstract idea in the Revised
Guidance, i.e., a mental process.
Step 2A, Prong Two (Integration into a Practical Application)
Under Prong Two of the Revised Guidance, we must determine if the
claims integrate the judicial exception into a practical application. That is,
we identify any additional claim limitations beyond the judicial exception
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and evaluate the additional limitations individually and in combination for
determining whether these limitations integrate the judicial exception into a
practical application.
However, we discern no additional elements ( or combination of
elements) recited in Appellants' claims 20, 29, and 35 (e.g., one or more
computer systems and mobile device) that integrate the judicial exception
into a practical application. See Revised Guidance, Revised Step 2A, Prong
Two. For example, Appellants' claimed additional elements (e.g., one or
more processor) recited in claim 20 do not: (1) improve the functioning of a
computer or other technology; (2) are not applied with any particular
machine (except for a generic computer); (3) do not effect a transformation
of a particular article to a different state; and ( 4) are not applied in any
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. See
MPEP §§ 2106.05(a}-(c), (e}-(h).
Contrary to Appellants' arguments, Appellants' Specification and
claims describe translating "patient data/information" "from first vendor-
specific vocabulary to a standard vocabulary" where "vendor-specific
vocabulary compris[ es] the terminology" required to display patient
data/information in a unified manner on a mobile device (see Spec. ,r,r 55,
85-86). Reply Br. 1-2. Such a method of translating "patient
data/information" "from first vendor-specific vocabulary to a standard
vocabulary" does not provide a technical solution to a technical problem.
The focus of Appellants' invention is not to improve the performance of
computers, but to use computers as a tool to implement patient data
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"integration and unification . . . across the products" in order to provide
patient data/information to a healthcare provider on a module device in an
integrated and unified manner (see Spec. ,r,r 85-86). While Appellants'
methods may improve the process of generating patient data/information for
the display, it is not an improvement to another technology or technical
field.
Thus, under Step 2A, Prong Two, we determine the judicial exception
is not integrated into a practical application under the Revised Guidance.
Alice/May~tep 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
In the second step of the Alice inquiry, Appellants contend claims 20-
39 recite "significantly more" than the alleged abstract idea. App. Br. 16. In
particular, Appellants argue that, like the claims in (1) DDR Holdings, LLC
v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014) and (2) Amdocs
(841 F.3d 1288), "each of claims 20-39 provides a technical solution ... to
address problems fundamentally rooted in computer technology and/or
operate in an unconventional manner to achieve an improvement in
computer functionality" because patient data is "partially translated in
response to the first request and by a first vocabulary service module" and
such would enable "display of patient data in a unified manner." Id. at 16-
17 (citing Spec. ,r,r 37-62; Figs. 3, 4). Appellants also argue that the features
of claims 20-39 provide a
concrete technical solution ( e.g., providing patient data in a
unified manner corresponding to a standard vocabulary) to
address problems fundamentally rooted in computer technology
( e.g., retrieving patient data from multiple, disparate resources
across healthcare continuum) to achieve an improvement in
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computer functionality ( e.g., display of patient data in a unified
manner).
Reply Br. 7-8. In addition, Appellants argue, like the claims of Bascom
Global Internet Services v. AT&T Mobility, LLC, 827 F.3d 1341 (Fed. Cir.
2016), Appellants' claims recite "a particular arrangement of modules, and
specifically, an adapter module that transmits to and receives from a first
host module and a second host module of first and second facility systems,
respectively, as well as first and second patient record modules that or of
different types." App. Br. 17.
Appellants' arguments are not persuasive. At the outset, we note
Appellants' reliance on DDR, Amdocs, and Bascom is misplaced. For
example, the Federal Circuit found DDR 's claims are patent-eligible under
section 101 because DDR 's claims: (1) do not merely recite "the
performance of some business practice known from the pre-Internet world"
previously disclosed in Bilski and Alice; but instead (2) provide a technical
solution to a technical problem unique to the Internet, i.e., a "solution ...
necessarily rooted in computer technology in order to overcome a problem
specifically arising in the realm of computer networks." DDR, 773 F.3d at
1257. Likewise, the Federal Circuit also found Amdocs' claims patent-
eligible under section 101 because like DDR, Amdocs' claims "entail[] an
unconventional technological solution ( enhancing data in a distributed
fashion) to a technological problem (massive record flows which previously
required massive databases)" and "improve the performance of the system
itself." Amdocs, 841 F.3d at 1300, 1302.
Similarly, Bascom (U.S. Patent No. 5,987,606 ("Bascom '606
patent")) describes a particular arrangement of filtering software at a specific
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location, remote from the end-users, with customizable filtering features
specific to each end user. The filtering software enables individually
customizable filtering at the remote ISP server by taking advantage of the
technical ability of the ISP server to identify individual accounts and
associate a request for Internet content with a specific individual account.
Bascom '606 patent, 4:35-38.
The Federal Circuit recognized that Bascom's installation of an
Internet content filter at a particular network location is "a technical
improvement over prior art ways of filtering such content" because such an
arrangement advantageously allows the Internet content filter to have "both
the benefits of a filter on a local computer and the benefits of a filter on the
ISP server" and "give[ s] users the ability to customize filtering for their
individual network accounts." Bascom, 827 F.3d at 1350, 1352. According
to the panel, Bascom's claims "do not preempt the use of the abstract idea of
filtering content on the Internet or on generic computer components
performing conventional activities." Id. Instead, Bascom's claims "carve
out a specific location for the filtering system (a remote ISP server) and
require the filtering system to give users the ability to customize filtering for
their individual network accounts." Id. As such, "an inventive concept can
be found in the non-conventional and non-generic arrangement of known,
conventional pieces." Id. at 1350.
In contrast to DDR, Amdocs, and Bascom, Appellants' claims and
Specification are directed to a system and method for providing a user of a
mobile device access to integrated and unified views of patient information
and patient physiological data from a plurality of data sources across the
healthcare continuum. Spec. ,r,r 4, 19. As recognized by the Examiner,
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computer modules are arranged for "performing routine and conventional
activities that are well-understood in the healthcare industry (i.e. receiving
data, determining data, processing data, transmitting data, receiving data,
providing data, etc.)." Ans. 9. Further, these arrangements of data being
located in different information systems (i.e. host module) and a central
entity communicating with separate information systems recite a
conventional data processing method in an Internet setting. As such, there is
no evidence in the record to support the contention that Appellants' claimed
system is intended to provide any technical solution to a technical problem
as required by DDR, or entail an unconventional technological solution to a
technological problem as required by Amdocs, or is provided with any non-
conventional and non-generic arrangement of known, conventional
components similar to Bascom.
Moreover, Appellants have not shown any specific limitation in
claims 20, 29, and 35 beyond the judicial exception that is not "well-
understood, routine, [ and] conventional" in the field. See MPEP
§ 2106.05( d). As such, we find no element or combination of elements
recited in Appellants' independent claims 20, 29, and 35 that provide any
"inventive concept" or add anything "significantly more" to transform the
abstract concept into a patent-eligible application. Alice, 573 U.S. 208 at
221. Instead, Appellants' invention uses generically-claimed computer
components (a service provider computer, healthcare provider computers) to
perform the abstract idea. As our reviewing court has observed, "after Alice,
there can remain no doubt: recitation of generic computer limitations does
not make an otherwise ineligible claim patent-eligible." DDR, 773 F.3d at
1256 ( citing Alice, 573 U.S. at 223).
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Because Appellants' independent claims 20, 29, and 35 are directed to
a patent-ineligible abstract concept and do not provide a solution to a
technical problem or recite an "inventive concept," we sustain the
Examiner's rejection of claims 20-39 under 35 U.S.C. § 101.
35 U.S. C. § 103 (a): Claims 20---39
In support of the obviousness rejection of independent claim 20 and,
similarly, claims 29 and 35, the Examiner finds the combination of Powell
and Beardall teaches all the claim limitations. Final Act. 5-7. In particular,
the Examiner finds Powell teaches most aspects of Appellants' claimed
method, shown in Figure 1, to provide patient information and patient
physiological data to a mobile device, including the disputed limitation:
" [ 1] determining ... that the user request is requesting first
patient data stored within a first patient record module of a first
facility system and second patient data stored within a second
patient record module of a second facility system, [ 1] the first
patient data and the second patient data being particular to a
patient, the first patient record module ... different type of
patient record module ... second patient record module .... "
Id. at 5 (citing Powell ,Ii-I 12-14).
The Examiner also finds Powell teaches the disputed limitation: "[2]
receiving, by the adapter module, the first patient data from the first host
module of the first facility system and the second patient data from the
second host module of the second facility system, the first patient data
having been at least partially translated" "in response to the first request and
by a first vocabulary located at the first facility system," "from a second
vendor-specific vocabulary to a standard vocabulary." Final Act. 6 (citing
Powell ,r,r 12-14).
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Powell's Figure 1 is reproduced below with additional markings for
illustration:
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24
30 FIG.1
Powell's Figure 1 shows a system architecture.
As shown in Powell's Figure 1, each facility system includes one or
more facilities 40 and "data is transferred from each of the first and second
facility systems 18, 20 through the network 16 and connectivity interface(s)
14 for presentation, or display on the mobile device 12." Powell ,r,r 30, 36.
Further, each facility 40 includes an associated information system 42,
storing patient data collected from the patient monitoring devices,
communicates patient data to a data management system (DMS). Powell ,r,r
37,41.
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To support the conclusion of obviousness, the Examiner then relies on
Beardall for teaching "second patient data having been at least partially
translated ... in response to the first request and by a first vocabulary
service module located at the first facility system," "from a second vendor-
specific vocabulary to the standard vocabulary,[4] the second vendor-
specific vocabulary different from the first vendor-specific vocabulary."
Final Act. 6---7 (citing Beardall ,Ii-I 46, 61-62; Figs. 2-3). 5
Appellants do not dispute the Examiner's reason to combine the
references. Instead, Appellants contend that Powell and Beardall do not
teach or suggest the disputed limitations because (1) "Powell provides that
the facility includes a first facility of a facility system, and the data
management system is located at a second facility of the facility system
(Powell, ,r [0013]) [Powell] being silent as to a vocabulary of the first and
second facility" and because (2) Beardall teaches:
the server of Beardall is provisioned with a suitable operating
system such as a data transform module to convert and store
data, which is different than determining that the user request is
requesting first patient data stored within a first patient record
module of a first facility system and second patient data stored
within a second patient record module of a second facility
system, the first patient data and the second patient data being
particular to a patient, the first patient record module being of a
4 We note that claim recites "the second patient data having been at least
partially translated in response to the first request and by a first vocabulary
service module located at the first facility system" ( emphasis added), where
the underlined portion was added in a response filed May 9, 2016.
However, no written support for such an amendment is found in the
Specification.
5 We note that the Examiner did not map "the second vendor-specific
vocabulary comprising the terminology" in his rejection of the claim.
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different type of patient record module than the second patient
record module.
App. Br. 21-22 ( emphasis omitted).
In other words, Appellants argue ( 1) Powell does not teach the
vocabulary of a facility, and (2) Beardall does not teach "first patient data
and ... second patient data being particular to a patient, the first patient
record module being of a different type of patient record module than the
second patient record module."
Appellants' arguments are not persuasive and are predicated on
improper attacks of Powell and Beardall individually, when the Examiner's
rejection is based on a combination of Powell and Beardall. See In re
Keller, 642 F.2d 413,425 (CCPA 1981) (holding that one cannot show non-
obviousness by attacking references individually where the rejection is based
on a combination of references). The test for obviousness is not whether the
claimed invention is expressly suggested in anyone or all of the references,
but whether the claimed subject matter would have been obvious to those of
ordinary skill in the art in light of the combined teachings of those
references. Id. at 425.
Beardall teaches a healthcare monitoring system for "visualizing
patient treatment measures in a network environment." Beardall, Abstract.
Figure 1 of Beardall is reproduced below with additional markings for
illustration.
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Appeal2017-010036
Application 14/551,541
12
\
r .................. t .................. .
2:6 llACK::ND
'-,.. SYSTEMS
r-1.------,
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.. · "· I MEDIC.t\L Dl,TA l !
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29
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As shown in Figure 1, Beardall teaches "various medical data sources
may generate or provide medical data 26, for example, medical data 26(1 )-
26(3) comprising various pieces of information in various formats."
Beardall ,r 17. Further, Beardall teaches that "[b]ackend systems 12 may
communicate medical data 26 and services data 28 to a cloud 29 comprising
a server 30 provisioned with a patient treatment timeline for measures
module 32." Id. ,r 20. Because the medical data is communicated to
construct the patient treatment timeline, it is clear that the medical data from
different sources are particular to a patient as recited in claims.
However, as recognized by the Examiner, Powell already discloses
that each medical facility includes an associated information system, e.g., a
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clinical information system (CIS), and/or a hospital information system
(HIS). Powell ,r 37, Fig. 1. Further, Powell discloses that the data
management system (DMS) synchronizes and transfers data between
multiple information systems and that data includes patient information.
Powell ,r,r 3 7, 40, 46. As such, Powell teaches ( 1) patient information stored
in multiple information system is particular to a patient; and (2) an
information system having a different type of patient record relative to other
information systems, which further implies the each information system
includes its own vocabulary. In other words, although Appellants argue
Beardall does not teach the limitation, i.e., the first patient data and the
second patient data being particular to a patient, the first patient record
module being of a different type of patient record module than the second
patient record module (see App. Br. 21-22), the Examiner relies on Powell
to teach the limitation. Final Act. 5. Therefore, the combination of Powell
and Beardall teaches "the first patient data and the second patient data being
particular to a patient, the first patient record module being of a different
type of patient record module than the second patient record module" as
claimed.
Further, the Examiner also finds that (1) Powell discloses an adapter
module to "receive, structure and specifically format received data by
applying rules (Powell et al., [0053])" and (2) Beardall teaches "translation
of data" as well as "each medical data source may be a separate system with
its own data format." Ans. 4 ( emphasis omitted). Because "vocabulary
services modules perform translation to provide data to devices in a unified
manner," the "translation performed by Appellant[ s '] claimed vocabulary
services modules is met by Beardall ... by data transform modules, that may
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be located at teach [sic] separate medical facility." Id. at 4--5; see also
Beardall ,r,r 46, 49, 60-61.
In the Reply, Appellants raise several new arguments against the
Examiner's combination, including: formats of Beardall differ based on
services rather than on a vendor where the "second vendor-specific
vocabulary comprising the terminology different than the first vendor-
specific vocabulary." Reply Br. 5---6. These arguments regarding the
Examiner's factual findings are not timely. In the absence of a showing of
good cause by Appellants, we can decline to consider these new argument
raised for the first time in the Reply Brief. See 37 C.F.R. § 4I.41(b)(2)
(2018); In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an
argument not first raised in the brief to the Board is waived on appeal); Ex
parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010) (informative)
( explaining that arguments and evidence not timely presented in the
principal Brief, will not be considered when filed in a Reply Brief, absent a
showing of good cause explaining why the argument could not have been
presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473, 1477
(BP AI 2010) (informative) ("Properly interpreted, the Rules do not require
the Board to take up a belated argument that has not been addressed by the
Examiner, absent a showing of good cause."). Therefore, the arguments
addressed in Appellants' Reply Brief have not been considered.
For these reasons, we are not persuaded of Examiner error.
Accordingly, we sustain the Examiner's obviousness rejection of
independent claims 20, 29, and 35 and their dependent claims 21-28, 30-34,
and 36-39.
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Appeal2017-010036
Application 14/551,541
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting (1) claims 20-39 under
35 U.S.C. § 101, and (2) claims 20-39 under 35 U.S.C. § 103(a).
DECISION
As such, we affirm (1) the Examiner's rejection of claims 20-39
under 35 U.S.C. § 101, and (2) the Examiner's rejection of claims 20-39
under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
24