Ex Parte Schaefer et al

Patent Trial and Appeal Board

Aug 21, 2018

13566775 (P.T.A.B. Aug. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/566,775 08/03/2012
23589 7590 08/23/2018
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
FIRST NAMED INVENTOR
David Schaefer
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.
44043 1496
EXAMINER
GO,JOHNP
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
08/23/2018 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):
uspatents@hoveywilliams.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID SCHAEFER and RON LINDAHL
Appeal 2017-000011
Application 13/566,775
Technology Center 3600
Before JOHN A. EV ANS, JASON J. CHUNG, and JAMES W. DEJMEK,
Administrative Patent Judges.
EV ANS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from the
Examiner's non-final rejection of Claim 35, the sole claim in the application.
Br. 8.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM. 2
1 Appellants state the real party in interest is AxelaCare Health Solutions,
Inc. Br. 5.
2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed November 4, 2015, "App. Br."); the
Examiner's Answer (mailed July 27, 2015, "Ans."); the Non-Final Action
(mailed March 25, 2015, "Non-Final Act."); and the Specification (filed
Appeal 2017-000011
Application 13/566,775
STATEMENT OF THE CASE
The claims relate to a computer program for directing operation of a
tablet computer or other portable electronic device operated by a caregiver
while administering an in-home or outpatient treatment to a patient. See
Abstract.
INVENTION
Claim 35, the sole claim in the application, is reproduced below:
35. A computer program stored on non-transitory computer-
readable medium for directing operation of a computer system
for analyzing patient data of patients receiving treatments, the
computer program comprising:
a code segment for receiving from a first portable
electronic device pre-treatment patient data representative of a
non-vital sign physical condition of a first patient before the
first patient receives a first treatment, the first treatment
including a first intravenous immunoglobulin (IVIG) injection,
the non-vital sign physical condition corresponding to a results
of a Timed Up and Go test, a RODS test, a modified fatigue
severity scale (MFSS) test, a self-evaluated pain scale test, a
quality of life questionnaire, and a grip strength test
administered from the portable electronic device, wherein the
result of the modified fatigue severity scale survey includes
responses to a plurality of questions related to a level of fatigue
experienced by a patient taking the survey, each question taking
the form of a statement, the questions being answerable via a
numerical scale, the results of the self-evaluated pain scale test
including a response to a question related to pain severity of the
patient and being answerable via a numerical scale, and the
result of the Timed Up and Go test including a measurement of
the amount of time required for the patient taking the test to
August 3, 2012, "Spec.") for their respective details.
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Appeal 2017-000011
Application 13/566,775
stand up from an arm chair, walk three meters, return to the
chair, and sit back down in the arm chair;
a code segment for receiving from the first portable
electronic device treatment patient data representative of the
non-vital sign physical condition of the first patient after the
first patient receives the first treatment;
a code segment for receiving photographs of a drug being
administered to one of the patients, a drug administration site,
and the one of the patients before, during, and after treatment;
a code segment for receiving instructions from a doctor
to change a treatment regimen of the first treatment after the
doctor accesses the pre-treatment patient data and the treatment
patient data to determine the efficacy of the first treatment, if
the doctor determines that a current treatment regimen should
be changed based on the pretreatment patient data and the
treatment patient data;
a code segment for transmitting the instructions in
substantially real time to the first portable electronic device so
that the caregiver and the doctor can immediately monitor the
patient's condition and alter a medical treatment;
a code segment for making a first data comparison, the
first data comparison being a comparison of the treatment
patient data of the first patient to the pre-treatment patient data
of the first patient;
a code segment for identifying changes in the condition
of the first patient based on the first data comparison;
a code segment for determining if a difference between
the treatment patient data of the first patient and the pre-
treatment data of the first patient is more than a predetermined
threshold amount of between 5 percent and 20 percent;
a code segment for automatically transmitting an alert to
the doctor if the difference is more than the predetermined
threshold amount;
a code segment for receiving from a second portable
electronic device pre-treatment patient data representative of a
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Appeal 2017-000011
Application 13/566,775
non-vital sign physical condition of a second patient before the
second patient receives a second treatment, the second
treatment including a second intravenous immunoglobulin
(IVIG) injection;
a code segment for receiving from the second portable
electronic device treatment patient data representative of the
non-vital sign physical condition of the second patient after the
second patient receives the second treatment;
a code segment for making a second data comparison, the
second data comparison being a comparison of the treatment
patient data of the second patient to the pre-treatment patient
data of the second patient;
a code segment for identifying changes in the condition
of the second patient based on the second data comparison;
a code segment for aggregating the changes in the
conditions of the first and second patients; and
a code segment for creating groups of patients who share
a common change in the Timed Up and Go test results, the
RODS test results, the MFSS test results, the self-evaluated
pain scale test results, the quality of life questionnaire, and the
grip strength test results as an effect of the treatments, the
groups being derived from the changes in the conditions of the
first and second patients.
References and Rejections
Florio et al., US 2002/0156651 Al Oct. 24, 2002
Dang US 2002/0165738 Al Nov. 7, 2002
Ding US 2004/0122308 Al June 24, 2004
Reed et al., US 2006/0084847 Al Apr. 20, 2006
Lang et al., US 2006/0241972 Al Oct. 26, 2006
Peterson et al., US 2008/0161651 Al July 3, 2008
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Appeal 2017-000011
Application 13/566,775
Langhei er et al.,
White
O'Donnell et al.,
US 2009/0070138 Al Mar. 12, 2009
US 2010/0143373 Al June 10, 2010
US 2011/0082115 Al Apr. 7, 2011
Sheau-Ling Huang, Ching-Lin Hsieh, Ruey-Meei Wu, Chun-Hwei Tai,
Chin-Hsien Lin, and Wen-Shian Lu, Minimal Detectable Change of the
Timed "Up & Go" Test and the Dynamic Gait Index in People With
Parkinson Disease, 91 PHYS. THER., 114--21 (2011). 3
The claims stand rejected as follows:
1. Claim 35 stands rejected under 35 U.S.C. § 112(b) as indefinite. Non-
Final Act. 3-7.
2. Claim 35 stands rejected under 35 U.S.C. § 101 as directed to an
abstract idea. Non-Final Act. 7-8.
3. Claim 35 stands rejected under 35 U.S.C. § 103 as obvious over Lang,
white, Huang, 0 'Donnell, Florio, Reed, Ding, Langheier, Peterson,
and Dang. Non-Final Act. 8-17.
3 The face page indicates that the article was published originally online
October 14, 2010 and that the online version of this article, along with
updated information and services, can be found at:
http://ptjoumal.apta.org/content/91/1/114.
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Application 13/566,775
ANALYSIS
We have reviewed the rejections of Claim 35 in light of Appellants'
arguments that the Examiner erred. We have considered in this decision
only those arguments Appellants actually raised in the Briefs. Any other
arguments that Appellants could have made but chose not to make in the
Briefs are deemed to be waived. See 37 C.F.R. § 4I.37(c)(l)(iv) (2014).
We are not persuaded that Appellants identify reversible error. Upon
consideration of the arguments presented in Appellant's Brief, we agree with
the Examiner that all the pending claims are unpatentable. We adopt as our
own the findings and reasons set forth in the rejection from which this
appeal is taken and in the Examiner's Answer, to the extent consistent with
our analysis below. We provide the following explanation to highlight and
address specific arguments and findings primarily for emphasis. We
consider Appellants' arguments seriatim, as they are presented in the Appeal
Brief, pages 14--30.
CLAIM 35: INDEFINITENESS
Threshold
Claim 3 5 recites, inter alia, determining whether a difference is "more
than a predetermined threshold amount of between 5 percent and 20 percent"
in order to determine if an alert should be generated. The Examiner finds
the claim does not, for example, recite that the calculated difference should
be between 5% and 20%, but instead recites that it should be more than
between the threshold. Ans. 2. The Examiner finds that because the claim
states that the difference must be "more" than "between" the threshold, it is
unclear, for example, if the difference must be any percentage between 5%
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Application 13/566,775
and 20%, or if it needs to be greater than the upper limit of the threshold of
20% therefore, one ordinarily skilled in the art would not be able to
ascertain with reasonable certainty the metes and bounds of this claim. Id. at
3.
Appellant contends the claim makes it clear that that threshold is a
value within the claimed interval, but do not reply to the Examiner's
Answer.
We are not persuaded the Examiner errs.
Because we affirm the Examiner's indefiniteness rejection of Claim
35, on the ground discussed above, we do not reach the alternative
rejections. See In re Gleave, 560 F.3d 1331, 1338 (Fed. Cir. 2009)
( declining to address a rejection of certain claims after upholding a rejection
of those claims on other grounds).
CLAIM 3 5: ABSTRACT IDEA
The Examiner finds Claim 3 5 compares new and stored information
(i.e. post and pre-treatment test results) to identify options (i.e. whether or
not to group patients together) to organize, store and transmit information.
Non-Final Act. 7. The Examiner finds Claim 3 5 uses a generic computer to
perform well-understood, routine, and conventional activities (i.e. gathering
and comparing patient information) previously known to the industry (i.e.
medical records) and finds the claim does not include additional elements
that are sufficient to amount to significantly more than the judicial
exception. Id.
Appellants recite the language of Claim 3 5 and contend generally
"Claim 35 provides specific elements that makes any abstract aspects of the
claim merely incidental to the claim as a whole." Br. 25.
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Application 13/566,775
We agree with the Examiner (see Ans. 4) that Claim 35 is directed to
the abstract idea of using categories (i.e. patients belonging in the same
group) to organize, store and transmit information, which is analogous to the
abstract idea identified in Content Extraction. 4
We also agree with the Examiner's further finding (Id.) that the
current invention may also be properly analogized to obtaining and
comparing intangible data (i.e., patient test results), which is the abstract
idea identified in Cybersource. 5
Appellants argue the claim recites limitations that are "significantly
more" than the abstract idea and that these limitations transform the abstract
idea into a patent-eligible application. Br. 27. We disagree.
Although the claim recites a computing device and various "code
segment[s]," the individual steps of the method are capable ofbeing
performed by a person, either mentally or with paper and pencil. Such
capability renders the method abstract. 6
Appellants do not reply to the Examiner's Answer and do not
persuade us the Examiner has erred.
CLAIM 35: OBVIOUSNESS OVER LANG AND
VARIOUS SECONDARY REFERENCES.
4 Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat 'l.
Ass., 776 F.3d. 1343 (Fed. Cir. 2014).
5 CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366 (Fed. Cir.
2011).
6 Id. at 1372.
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Application 13/566,775
Appellants admit the prior art teaches each claimed limitation, but
contend the Examiner has failed to provide motivation to combine the
various art. See Br. 27-30.
The Examiner finds Lang teaches a procedure to evaluate the
outcomes of "surgical and medical treatments." Ans. 7. The Examiner finds
the remaining art teaches various, specific, well-known medical tests. Id.
The Examiner finds the motivation to combine the art proceeds from Lang,
which teaches the concept of evaluating the outcomes of medical
procedures. Id.
Appellant does not reply to the Examiner's Answer and do not
persuade us the Examiner has erred.
DECISION
The rejection of Claim 35 under 35 U.S.C. § 101 is AFFIRMED.
The rejection of Claim 35 under 35 U.S.C. § 103 is AFFIRMED.
The rejection ofClaim 35 under 35 U.S.C. § 112(b) 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).
AFFIRMED
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