Ex Parte Reichert et alDownload PDFPatent Trial and Appeal BoardFeb 25, 201612013530 (P.T.A.B. Feb. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/013,530 01114/2008 28524 7590 02/29/2016 SIEMENS CORPORATION INTELLECTUAL PROPERTY DEPARTMENT 3501 Quadrangle Blvd Ste 230 Orlando, FL 32817 FIRST NAMED INVENTOR Helge Reichert 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. 2007P00902USO 1 8812 EXAMINER LUBIN, VALERIE 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): ipdadmin.us@siemens.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HELGE REICHERT, SEBASTIAN BAER, ALEXANDER SCHUETZ, and ROBIN FISCHER Appeal2013-008062 Application 12/013,5301 Technology Center 3600 Before MICHAEL C. ASTORINO, BRUCE T. WIEDER, and BRADLEY B. BAY AT, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner's rejection of claims 1-18. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER Appellants' claimed invention relates to "a system enabling cost based treatment selection by providing a healthcare worker with patient case specific treatment cost information." (Spec. 1.) 1 According to Appellants, the real party in interest is Siemens Medical Solutions USA Inc. (Appeal Br. 2.) Appeal2013-008026 Application 12/013,530 Claims 1, 15, and 18 are the independent claims on appeal. Claim 1 is representative and reproduced below: 1. A system implemented on one or more processing devices enabling cost based treatment selection by providing a healthcare worker with patient specific treatment cost information during a treatment episode, comprising: an acquisition processor communicates with at least one information repository of data in a plurality of hospital systems including a clinical information system and administrative and admission system, said acquisition processor automatically interrogates said at least one information repository for data indicating cost to a healthcare organization of providing a proposed treatment including imaging and laboratory test services to a patient and expected cost reimbursement to said healthcare organization for the patient specific proposed treatment by initiating generation of at least one interrogation message including a patient identifier and a patient specific treatment identification code, in response to determining an order is placed for administration of diagnostic services to a patient including imaging and laboratory test services; a data processor for calculating expected profit or loss of the patient specific proposed treatment based on said cost of proposed treatment including the diagnostic imaging and laboratory test services and an expected cost reimbursement, said reimbursement being determined based on a contract between said healthcare provider organization and a payer organization in response to said patient specific treatment identification code; and a display processor for initiating generation of data representing at least one display image including information indicating said proposed treatment is unprofitable for said healthcare organization in response to acquired data indicating cost of proposed treatment and expected cost reimbursement. 2 Appeal2013-008026 Application 12/013,530 REJECTIONS2 Claims 1, 3-10, and 14--18 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Mainzer (US 2006/0080139 Al, pub. Apr. 13, 2006) and Joao (US 6,283,761 Bl, iss. Sept. 4, 2001). Claims 2 and 11-13 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Mainzer, Joao, and Pollard (US 2002/0147616 Al, pub. Oct. 10, 2002). FINDINGS OF FACT \Ve rely on the Examiner's findings of fact stated in the Final Office Action mailed October 26, 2012, and in the Answer. Additional findings of fact may appear in the Analysis below. ANALYSIS Claim 1 With regard to claim 1, Appellants argue that Mainzer and Jao [sic] individually and together, describe a system for costing and getting reimbursement for, drugs that have already been prescribed and are already being administered to a patient. Whereas, the claimed system enables a user to select a treatment based on cost "of providing a proposed treatment including imaging and laboratory test services" enabling a user to select a treatment based on cost. (Appeal Br. 12.) 2 The rejection of claims 1-18 under 35 U.S.C. § 112, second paragraph, was withdrawn. (Answer 3.) 3 Appeal2013-008026 Application 12/013,530 The Examiner answers that "Mainzer discloses predicting costs pertaining to treatment as well as expected reimbursements." (Answer 6, citing Mainzer i-f 27.) Mainzer discloses "a cost estimation tool 10 for estimating costs for a patient receiving a course of treatment." (Mainzer i-f 22.) Mainzer also discloses that "[ d]ata on various treatments and medication is contained in a treatment database 4" and "reimbursement rules and requirements for various insurance and government programs are contained in a reimbursement database 5." (Id.) Mainzer further discloses that the present invention collects various information about a patient and that patient's cost coverage by insurance and government programs. This information can then be used at check-into [sic] predict these third party reimbursements. These reimbursements prediction can then be used to predict expected costs to the patient. The information can further be used during the stay so that treatment decisions can be made in view of the reimbursements prediction and requirements. (Id. i-f 27, emphasis added.) Figure 5 ofMainzer shows a display screen for inputting cost estimates for patient care. The screen lists, among other items, "Labs." (Mainzer, Fig. 5.) In other words, Mainzer discloses a system that calculates costs of a proposed treatment including laboratory services. (See id. i-f 53.) Appellants also argue that neither Mainzer nor Joao discloses "calculating expected profit or loss of the patent proposed treatment" as recited in claim 1. (Appeal Br. 12.) However, Mainzer, in further describing the device shown in Figure 5, states that fixed costs and drug costs are "subtracted from the reimbursement amount 530 to determine the health care facility's daily profitability 560 from the patient." (Mainzer 4 Appeal2013-008026 Application 12/013,530 if 61; see also Final Action 3--4.) Moreover, Figure 5 of Mainzer includes a line item for "Net Income," i.e., the expected Medicare reimbursement revenue less costs for treatment. (Mainzer, Fig. 5.) Appellants further argue that Jao [sic] in column 17 relied on merely mentions storage of images in database 10. Mention of images in a database nowhere suggests costing "a proposed treatment including imaging and laboratory test services". Mainzer with J ao [sic] also fails to suggest "calculating expected profit or loss of the patient specific proposed treatment based on said cost of proposed treatment including the diagnostic imaging and laboratory test services and an expected cost reimbursement". (Appeal Br. 12.) However, we agree with the Examiner that Mainzer recites calculating expected profit or loss of the patient specific proposed treatment based on said cost of proposed treatment (Fig. 5, if 61 "determine the health care facility's daily profitability 560 from the patient...A potential saving value 570 ... "). \Vhat is included in a treatment is a mere substitute for one known treatment option for another that yields predictable results and does not further limit the claimed system. (Answer 5; see also Mainzer if 27.) Appellants also argue with regard to claim 1 that Mainzer (with Jao [sic]) fails to show or suggest "an acquisition processor" that "communicates with a plurality of hospital systems including a clinical information system and administrative and admission system" "in response to determining an order is placed for administration of diagnostic services to a patient including imaging and laboratory test services". (Appeal Br. 13.) 5 Appeal2013-008026 Application 12/013,530 We agree with the Examiner that claim 1 recites "an acquisition processor communicates with at least one information repository of data in a plurality of hospital systems including a clinical information system and administrative and admission system ... " which is different in scope from what Appellant is currently arguing the prior art does not teach. What is actually claimed is a processor communicating with at least one information repository of data in a plurality of hospital systems. Second, Examiner has shown that both references recite a processor communicating with at least one repository (See Mainzer Fig. 16 and Joao Fig. 2 element lOH). Joao also recites the database being associated with a hospital (Col. 2 lines 62-67; col. 3 line 1) .... With regards to the names given to the information system, i.e. clinical, administrative and admission, they do not further limit the structure or the functions of the claimed system. (Answer 4.) Therefore, we affirm the rejection of claim 1. Claims 3 and 5 7 With regard to claim 3, Appellants argue that "Mainzer (with Jao [sic]) fails to show or suggest" the additional limitation recited in claim 3. We are not persuaded of reversible error because Appellants have the burden to rebut the Examiner's prima facie case by distinctly and specifically pointing out the supposed errors in the Examiner's action, as well as the specific distinctions believed to render the claims patentable over the applied references. See 37 C.F.R. § 41.37(c)(iv) (2013) ("A statement which merely points out what a claim recites will not be considered an argument for separate patentability of the claim."); see also In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal 6 Appeal2013-008026 Application 12/013,530 brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art."). Appellants have not met their burden. Therefore, we affirm the rejection of claim 3. Dependent claims 5-7, which depend from claim 3, are not separately argued. Therefore, we also affirm the rejection of claims 5-7 for the same reasons. Claims 4 and 8 Claim 4 recites, inter alia, "wherein said data processor is configured to calculate expected profit or loss of said proposed treatment by subtracting said cost of proposed treatment from said expected cost reimbursement." Appellants argue that "[n]either, Mainzer nor Jao [sic] recognizes any advantage or motivation or provides any other reason for calculating 'expected profit or loss of said proposed treatment by subtracting said cost of proposed treatment from said expected cost reimbursement'." (Appeal Br. 15.) We agree with the Examiner that Mainzer discloses such a feature (i-f 61 "Various fixed costs ... subtracted from the reimbursement amount"). Figure 5 of Mainzer shows different types of fixed costs such as nursing, labs, rehab, etc. along with drugs which are all part of a patient treatment. Those costs are subtracted from a reimbursement amount 530 in order to show profitability. (Answer 6; see also Mainzer i127.) Therefore, we affirm the rejection of claim 4. Claim 8, which depends from claim 4, is not separately argued. Therefore, we also affirm the rejection of claim 8 for the same reasons. 7 Appeal2013-008026 Application 12/013,530 Claim 9 Claim 9 recites: 9. The system according to claim 1, wherein said order for administration of diagnostic services to a patient including imaging and laboratory test services is placed by entry of data via a computerized treatment order entry system and said information indicating said proposed treatment is unprofitable for said healthcare organization is presented in a composite image together with data identifying a treatment order for said proposed treatment provided by said computerized order entry system. Appellants argue that Mainzer (with J ao [sic]) merely discusses determining cost of an established patient drug regimen for a patient that has already been diagnosed to determine patient costs for a long term care facility and does not suggest automatic communication with the "clinical information system and administrative and admission system" enabling determination of profitability of diagnostic services. Contrary to the Rejection statement on page 6, Jao [sic] does NOT describe an order for a treatment in column 25 lines 19-21 but merely entry of patient medical history. (Appeal Br. 16.) The Examiner answers that in Joao, [c]olumn 25 describes a process as seen in Fig. 7 utilized by a user to "ascertain a diagnosis" (lines 5-7). The process involves receiving or retrieving patient data based on user input, evaluating said data and producing a diagnostic and/ or treatment report based on said evaluation. By accessing the central processing computer, entering patient data (lines 10-13), a user is initiating an order. (Answer 7.) Joao discloses a method, shown in Figure 7, in which "the provider will access the central processing computer 10 and enter data and/ or 8 Appeal2013-008026 Application 12/013,530 information regarding the patient." (Joao, col. 25, 11. 11-13.) "[T]he patient's symptoms, if any, and/or examination findings, are obtained from the patient and transmitted from the provider communication device 20 to the central processing computer 10." (Id. at col. 25, 11. 27-30.) "[T]he central processing computer 10 will [then] perform a comprehensive diagnostic evaluation of the patient's symptoms, if any, and/or the examination findings." (Id. at col. 25, 11. 36-38.) Next, "the central processing computer will generate a diagnostic report which can include a diagnosis of the patient's condition, if needed." (Id. at col. 25, 11. 39--41.) "[T]he central processing computer 10 will then generate a treatment report which will outline and/ or prescribe treatment for the single diagnosis and/ or for the list of possible diagnoses, if any." (Id. at col. 25, 11. 46--49.) Next, "the central processing computer 10 will transmit the diagnostic report and/or treatment report to the provider's communication device 20 at which point the medical doctor can obtain the diagnosis or possible diagnoses, if any, and corresponding treatment plans." (Id. at col. 25, 11. 53-57.) Then, "the medical doctor will transmit the final diagnosis and treatment plan, including the prescribed treatment and/or treatment plan, if any, to the central processing computer 10." (Id. at col. 25, 11. 62---65.) In short, Joao discloses creating a proposed treatment plan for a patient. Joao is not, contrary to Appellants' assertion, limited to an already established patient drug regimen or treatment plan. Additionally, Appellants do not persuasively argue why the Examiner erred in determining that "[i]t would have been obvious to one of ordinary skill in the art to add the feature 9 Appeal2013-008026 Application 12/013,530 of Joao to Mainzer with the motivation of streamlining healthcare processes and achieving efficiencies. (Final Action 4.) Therefore, we affirm the rejection of claim 9. Claim 10 Claim 10 recites: 10. The system according to claim 1, wherein said acquisition processor is configured to automatically communicate with an enterprise resource planning system, said data processor is configured to calculate expected profit or loss of the patient specific proposed treatment using cost related data for services acquired from the enterprise resource planning system and said data processor is configured to calculate said expected profit or loss in response to at least one of, (a) a change in level of care of said patient and (b) a change in, or creation of, a treatment plan for said patient. Appellants argue that [n]either, Mainzer nor Jao [sic] recognize any advantage or motivation or provides any other reason for a system that "automatically communicates with an enterprise resource planning system" to calculate "expected profit or loss of the patient specific proposed treatment" including "diagnostic imaging and laboratory test services" "using cost related data for services acquired from the enterprise resource planning system". (Appeal Br. 17.) The Examiner answers that Mainzer recites computing expected profit or loss (Fig. 5) and J oao recites a computer acquiring and transferring data to a plurality of other computers or systems (Col. 14 lines 59-64). As previously stated, the name of the computer systems 10 Appeal2013-008026 Application 12/013,530 communicating does not further limit the structure not the functions of the claimed system. (Answer 7.) As discussed above, Joao discloses communication between a provider communication device and a central processing computer that performs multiple functions. As also discussed above, Mainzer discloses computing net income resulting from the proposed treatment. (See, e.g., Mainzer, Fig. 5.) As also discussed above, "[w]hat is included in a treatment is a mere substitute for one known treatment option for another that yields predictable results and does not further limit the claimed system." (Answer 5.) In other words, including diagnostic imaging in addition to the laboratory services disclosed in Joao does not further limit the claimed system for purposes of our obviousness determination. Therefore, we affirm the rejection of claim 10. Claims 14-18 Claim 14 depends from claim 1. Appellants do not argue against the rejection of claim 14. Therefore, we affirm the rejection of claim 14 for the reasons discussed above with regard to claim 1. With regard to claims 15 and 18, Appellants argue that "[i]ndependent claims 15 and 18 are considered to be patentable for reasons given in connection with claims 1, 2, and 9." (Appeal Br. 17.) Appellants also argue that "[ d]ependent claims 16 and 17 are considered to be patentable based on their dependence on claim 15 and for reasons given in connection with claims 1, 2, and 9." (Id.) Thus, we affirm the rejection of claims 14--18. 11 Appeal2013-008026 Application 12/013,530 Claims 2 and 11-13 Claim 2 recites: 2. The system according to claim 1, wherein said acquisition processor is configured to automatically communicate with a contract management system, said data processor is configured to calculate expected profit or loss of the patient specific proposed treatment using contract related billing information acquired from the contract management system, said treatment identification code comprises a Diagnostic Related Group Code (DRG) code, said information indicating said proposed treatment is unprofitable for said healthcare organization is presented in response to entry of data indicating said proposed treatment via a computerized order entry system and said data processor is configured to calculate expected profit or loss of said proposed treatment by subtracting said cost of proposed treatment from said expected cost reimbursement. Appellants argue that [t]he Rejection on page 8 [of the final office action] erroneously states that the type of system interrogated for cost data "in response to determining an order is placed for administration of diagnostic services" is not patentably distinguishable over any information system. This is incorrect. On this basis any computerized invention would be rendered obvious in view of the computer. A system that interrogates a hospital "admission system" for cost data "in response to determining an order is placed for administration of diagnostic services" is fundamentally different to one that interrogates a different type of system and involves different connections, different host entities, different type of data formats and different types of stages in a healthcare process and above all a different inventive recognition and realization. (Appeal Br. 18-19.) 12 Appeal2013-008026 Application 12/013,530 The Examiner answers that the prior art shows a processor communicating with other computer systems as recited in J oao and that the names of such systems do not further limit the structure not [sic] the functions of the claimed system. Second, Appellant has not shown what structural and functional differences exist between the systems recited in the claims and the ones cited to teach the functions claimed. . . . Appellant has not reflected in the claim how the cost data obtained from one system is any different from cost data obtained from another. (Answer 8.) In short, Appellants argue that the data from different systems is different. But Appellants present no evidence of structural or fundamental differences between the claimed system and those cited as teaching the claimed system. Appellants next argue that Mainzer with J ao [sic] fails to suggest "said acquisition processor is configured to automatically communicate with a contract management system" and "said data processor is configured to calculate expected profit or loss of the patient specific proposed treatment using contract related billing information acquired from the contract management system, said treatment identification code comprises a Diagnostic Related Group Code (DRG) code". (Appeal Br. 19.) The Examiner finds that "Joao recites a computer acquiring and transferring data to a plurality of other computers or systems (Col. 14 lines 59-64) which include contract management systems (Fig. 1 elements 20 and 30)." (Final Action 8.) The Examiner also finds that paragraph 7 of Pollard discloses use of DRG codes. (Id. at 9.) Further, the Examiner determines that "the name of the systems in question does not make a material 13 Appeal2013-008026 Application 12/013,530 difference in the communication. It would have been obvious to one of ordinary skill in the art to add the features of J oao to Mainzer for the same reasons as those stated in the rejection of claim 1." (Id.) Pollard discloses: "To facilitate the use of computers and to have a widely accepted shorthand, the medical services are codified using code sets such as ... DRG (Diagnosis Related Groups) .... " (Pollard i-f 7.) Appellants have not persuasively argued why Joao's disclosure of a central processing computer acquiring and transferring data with other systems, as shown in Figure 1, does not "suggest 'said acquisition processor is configured to automatically communicate with a contract management system."' (See Appeal Br. 19.) Appellants also have not persuasively argued, particularly in view of the above discussion of Pollard and Figure 5 of Mainzer, that the prior art does not suggest "said data processor is configured to calculate expected profit or loss of the patient specific proposed treatment using contract related billing information acquired from the contract management system, said treatment identification code comprises a Diagnostic Related Group Code (DRG) code". (See id.) Appellants' additional arguments with regard to claim 2, including those arguing that the cited art only discloses services already performed and that the cited prior art does not disclose calculating expected profit or loss, have been addressed above. Appellants have not persuaded us that the Examiner erred in rejecting claim 2. Therefore, we affirm the rejection of claim 2. Appellants argue that "[d]ependent claims 11-13 are considered to be patentable based on their dependence on claim 1 and for reasons given in connection with previous claims." (Appeal Br. 24.) For the reasons 14 Appeal2013-008026 Application 12/013,530 discussed above, Appellants have not persuaded us that the Examiner erred in rejecting claims 11-13. Thus, we affirm the rejection of claims 11-13. Appellants' other arguments have been considered but are not deemed persuasive of reversible error. DECISION The Examiner's rejections of claims 1-18 under 35 U.S.C. § 103(a) are 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)(l )(iv). AFFIRMED 15 Copy with citationCopy as parenthetical citation