FENWAL, INC.Download PDFPatent Trials and Appeals BoardAug 10, 20212021001106 (P.T.A.B. Aug. 10, 2021) 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. 15/134,718 04/21/2016 Kathleen Mickles F-6730-REG 1320 112722 7590 08/10/2021 Becker Patent Law, LLC 5424 W. Princeton Pines Ct. Franklin, WI 53132 EXAMINER SASS, KIMBERLY A. ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 08/10/2021 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): eofficeaction@appcoll.com stevebeckerlaw@gmail.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KATHLEEN MICKLES and DALE MEIXELSPERGER ____________ Appeal 2021-001106 Application 15/134,718 Technology Center 3600 ____________ Before ANTON W. FETTING, MICHAEL C. ASTORINO, and JAMES P. CALVE, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Kathleen Mickles and Dale Meixelsperger (Appellant2) seek review under 35 U.S.C. § 134(a) of a final rejection of claims 1–9, 11–16, and 22–25, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal Br.,” filed June 15, 2020) and Reply Brief (“Reply Br.,” filed December 2, 2020), and the Examiner’s Answer (“Ans.,” mailed October 2, 2020), and Final Action (“Final Act.,” mailed January 21, 2020). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Fenwal Inc. (Appeal Br. 1). Appeal 2021-001106 Application 15/134,718 2 The Appellant invented a blood donor history record system. Specification para. 2. An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below (bracketed matter and some paragraphing added). 1. A blood donation tracking system, comprising: [1] a database storing records for a plurality of blood donors, the database comprising records for a plurality of donations made by the blood donors, each record comprising an amount of a blood component the blood donor has donated; [2] a network interface circuit configured to receive data over a network relating to the donations made by the blood donors and the records associated with those donations including donor characteristics, and configured to communicate data over the network to a remote computing device; [3] a processing circuit coupled to the database and the network interface circuit configured to: [3.1] determine an amount of blood component a donor may donate based on records for a plurality of donations made by the blood donor and based on a limit of an amount of blood component a donor may donate in a predetermined period of time; [3.2.1] receive a request for the amount of the blood component the donor may donate from the remote computing device; and Appeal 2021-001106 Application 15/134,718 3 [3.2.2] transmit the amount of the blood component the donor may donate to the remote computing device; [3.3] provide an indication of the amount as a pre collection blood component amount the donor may donate and further providing an indication of a post collection blood component amount the donor may donate, wherein the post collection blood component amount the donor may donate represents the pre collection blood component amount the donor may donate minus an amount of a blood component collection selected by a user during a scheduling process at the remote computing device; and [3.4] transmit the indications to the remote computing device. The Examiner relies upon the following prior art: Name Reference Date Fletcher- Haynes '769 US 7,072,769 B2 July 4, 2006 Ng US 2003/0004751 A1 Jan. 2, 2003 Pierce US 2004/0199098 A1 Oct. 7, 2004 Lastinger US 2005/0060246 A1 Mar. 17, 2005 Fletcher- Haynes '883 US 2005/0209883 A1 Sept. 22, 2005 Fletcher US 2012/0010062 A1 Jan. 12, 2012 Appeal 2021-001106 Application 15/134,718 4 Claims 23–25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769 and Fletcher-Haynes '883. Claims 1, 2, 4–8, 11–16, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, and Ng. Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Pierce. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Lastinger. ISSUES The issues of obviousness turn primarily on whether the art describes a number of platelet donations a donor may make. 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 the Prior Art Fletcher-Haynes '769 01. Fletcher-Haynes '769 is directed to providing information management and/or data manipulation and/or optimization capabilities to, in and/or with extracorporeal blood processing systems. Fletcher-Haynes '769 1:10–14. 02. Fletcher-Haynes '769 describes blood component inventory control by basing donor selection and/or collection procedure selection (in terms of the type of blood component to be collected) Appeal 2021-001106 Application 15/134,718 5 on blood component demand and/or existing inventory. Fletcher- Haynes '769 3:10–15. Fletcher-Haynes '883 03. Fletcher-Haynes '883 is directed to providing information management, data manipulation, or optimization capabilities for extracorporeal blood processing systems. Fletcher-Haynes '883 para. 2. 04. Fletcher-Haynes '883 describes records for a donor's total annual donation or loss both of red blood cells and of plasma. Where a donation comprises a donation of either red blood cells or plasma by apheresis, the actual amount of extracted blood component is recorded. Where a donation of whole blood is made, and the donor's actual hematocrit is known, a portion of the donation volume is attributed to red blood cells and another portion is attributed to plasma, based on the actual hematocrit. Where the actual hematocrit of the whole blood donation is not known, a portion of the donation volume is attributed to red blood cells based on a maximum feasible hematocrit and another portion is attributed to plasma based on a minimum feasible hematocrit. This provides blood loss equivalency tracking. Fletcher-Haynes '883 para. 11. Fletcher 05. Fletcher is directed to separating particles or components of a biologic fluid, such as blood. Fletcher para. 3. 06. Fletcher describes characteristics of a donor, such as weight, sex, hematocrit, or platelet count, being entered in the system and used Appeal 2021-001106 Application 15/134,718 6 to predict the amount of selected blood components that the donor may be able to donate in a reasonable period of time. The collected components are subsequently separated into units or “products” of appropriate sizes for administration to a patient. A particular donor may be able to give twice or even three times this amount of platelets, which could be divided into a “double product” or a “triple product”. The exact amount of a donation is usually not known, however, until after the completion of the donation process. The apheresis machine uses information about the donor and statistical models to estimate the number of cells that will be collected for a certain volume of the donor's blood, processed over a selected period of time. Fletcher para. 44. Ng 07. Ng is directed to an automated tracking system and interface for use in the blood collection industry. Ng para. 2. 08. Ng describes an identifier such as a bleed number is generated and queued in a scheduling database, if the donor's vital signs are acceptable and the donor is eligible. The scheduling database now points to or has access to donor demographics, vital signs, and medical history, and the donor's weight is used by the system server to calculate a nomogram; i.e. the volume of blood or blood component to collect. Ng para. 379. Appeal 2021-001106 Application 15/134,718 7 Pierce 09. Pierce is directed to a centrifugal blood processing systems and apparatus. Pierce para. 2. 10. Pierce describes a utility function that provides an estimation of the donor's net fluid volume deficit as a result of the procedure, which will be called the Post-Intravascular Volume Deficit or Post-IVD. Another utility function provides an estimation of the hematocrit of the donor's blood after the procedure, which will be called the Post-Hematocrit. The utility functions can be performed after any selected blood processing procedure, e.g., after a procedure that collects platelets without collecting red blood cells, or after a procedure that collects both platelets and red blood cells. Pierce para. 128. Lastinger 11. Lastinger is directed to monitoring systems and methods that monitor weight. Lastinger para. 2. 12. Lastinger describes a visual display for visually displaying information about the load supported by the storage unit. The visual display may include one or more visual indicators for indicating a current status of the load supported by the storage unit. Lastinger para. 89. Appeal 2021-001106 Application 15/134,718 8 ANALYSIS Claims 23–25 rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769 and Fletcher-Haynes '883 We are persuaded by Appellant’s argument that neither reference displays a number of platelet donations a donor may make (e.g., eight, 10 or 20 platelet donations allowed). Instead, Fletcher-Haynes2 displays a volume of platelet donated at one particular donation (e.g., 7.0x10 E11 platelets). The Office responds that the present “specification says amounts may be expressed in volume, number of donations.” While it is true that amounts may be expressed in volume, number of donations, or other units, the claimed embodiment expresses platelet donations in number of donations, not in volume at one particular donation: “determine a number of platelet donations a donor may donate based on the records and based on a limit of a number of platelet donations the donor may donate in a predetermined period of time”. The prior art must teach what is claimed, not what is described in unclaimed alternatives recited in the specification. The Office also responds that “under broadest reasonable interpretation a number of platelet donations may be one platelet donation.” FIG. 5A of Fletcher-Haynes2 shows an estimated volume in mL of platelet collected at the end of a procedure. A person of ordinary skill in the art would not look at this volume and conclude that this screen displays “the number of platelet donations the donor may donate,” especially when such number of platelet donations is defined in Claim 23 as being “based on the [donation] records and based on a limit of a number of platelet donations the donor may donate in a predetermined period of time.” Appeal Br. 7 (citations, underlining and emphasis omitted). The Examiner fails to persuasively rebut this with “a volume of platelets is 1 donation.” Ans. 3. Claims 24 and 25 depend from claim 23. Appeal 2021-001106 Application 15/134,718 9 Claims 1, 2, 4–8, 11–16, and 22 rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, and Ng As to claim 1, we are persuaded by Appellant’s argument that “[a]ll Fletcher-HaynesI does with the 12-month period here is to let the operator view total blood loss from activities in the prior 12-month period. There is no determination (done by a processing circuit) of a blood component a donor may donate based on prior records and a limit.” Reply Br. 7. Independent claim 11 has a similar limitation. The remaining claims depend from claims 1 and 11. Claim 3 rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher- Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Pierce Claim 3 depends from claim 1. Claim 9 rejected under 35 U.S.C. § 103(a) as unpatentable over Fletcher- Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Lastinger Claim 9 depends from claim 1. CONCLUSIONS OF LAW The rejection of claims 23–25 under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769 and Fletcher-Haynes '883 is improper. The rejection of claims 1, 2, 4–8, 11–16, and 22 under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, and Ng is improper. Appeal 2021-001106 Application 15/134,718 10 The rejection of claim 3 under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Pierce is improper. The rejection of claim 9 under 35 U.S.C. § 103(a) as unpatentable over Fletcher-Haynes '769, Fletcher-Haynes '883, Fletcher, Ng, and Lastinger is improper. NEW GROUND OF REJECTION The following new ground of rejection is entered pursuant to 37 C.F.R. § 41.50(b). Claims 1–9, 11–16, and 22–25 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. STEP 13 Claim 1, as a system claim, nominally recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. The issue before us is whether it is directed to a judicial exception without significantly more. STEP 2 The Supreme Court set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, . . . determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us? To answer that question, . . . consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional 3 For continuity of analysis, we adopt the steps nomenclature from 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Appeal 2021-001106 Application 15/134,718 11 elements “transform the nature of the claim” into a patent- eligible application. [The Court] described step two of this analysis as a 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.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine what the claims are directed to. This begins by determining whether the claims recite one of the judicial exceptions (a law of nature, a natural phenomenon, or an abstract idea). Then, if the claims recite a judicial exception, determining whether the claims at issue are directed to the recited judicial exception, or whether the recited judicial exception is integrated into a practical application of that exception, i.e., that the claims “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at 54. If the claims are directed to a judicial exception, then finally determining whether the claims provide an inventive concept because the additional elements recited in the claims provide significantly more than the recited judicial exception. STEP 2A Prong 1 At a high level, and for our preliminary analysis, we note that claim 1 recites a database, network and processor. The database is recited as storing records and the network as communicating data. As these are each generic, conventional functions for a database and network, they do not confer eligibility. The processor is recited as performing a series of process steps, Appeal 2021-001106 Application 15/134,718 12 and is therefore a conventional computer performing the steps of a method claim. The use and arrangement of conventional and generic computer components recited in the claims—such as a database, user terminal, and server— do not transform the claim, as a whole, into “significantly more” than a claim to the abstract idea itself. “We have repeatedly held that such invocations of computers and networks that are not even arguably inventive are ‘insufficient to pass the test of an inventive concept in the application’ of an abstract idea.” Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1056 (Fed. Cir. 2017) (citations omitted). As to the recited steps, these include storing and receiving data, determining amount data, receiving request data, transmitting amount data, and providing and transmitting indication data. Determining amount data is mathematical analysis. Providing data is analyzing data. Thus, claim 1 recites storing, receiving, transmitting, and analyzing data. None of the limitations recites technological implementation details for any of these steps, but instead recite only results desired by any and all possible means. From this we see that claim 1 does not recite the judicial exceptions of either natural phenomena or laws of nature. Under Supreme Court precedent, claims directed purely to an abstract idea are patent in-eligible. As set forth in the Revised Guidance, which extracts and synthesizes key concepts identified by the courts, abstract ideas include (1) mathematical concepts4, (2) certain methods of organizing 4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v. Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio Appeal 2021-001106 Application 15/134,718 13 human activity5, and (3) mental processes6. Among those certain methods of organizing human activity listed in the Revised Guidance are managing personal behavior or relationships or interactions between people. Like those concepts, claim 1 recites the concept of managing blood donations. Specifically, claim 1 recites operations that would ordinarily take place in advising one to communicate the amount of pre and post collection donation based on data and donor selection. The advice to communicate the amount of pre and post collection donation based on data and donor selection involves determining an amount of blood component a donor may donate, which is a managerial act, and transmitting the amount of the blood component the donor may donate, which is an act ordinarily performed in the stream of medical management. For example, claim 1 recites “determine an amount of blood component a donor may donate,” which is an activity that would take place whenever one is managing blood donations. Similarly, claim 1 recites “transmit the amount of the blood component the donor may donate,” which is also characteristic of managing blood donations. The preamble to claim 1 recites that it is a blood donation tracking system. The steps in claim 1 result in managing blood donations by Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). 5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219–20; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir. 2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed. Cir. 2018). 6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Appeal 2021-001106 Application 15/134,718 14 communicating the amount of pre and post collection donation based on data and donor selection absent any technological mechanism other than a conventional computer for doing so. As to the specific limitations, limitations 2 and 3.2.1 recite receiving data. Limitations 1, 3.1, 3.2.2, 3.3, and 3.4 recite generic and conventional storing, transmitting, and analyzing of blood donation data, which advise one to apply generic functions to get to these results. The limitations thus recite advice for communicating the amount of pre and post collection donation based on data and donor selection. To advocate communicating the amount of pre and post collection donation based on data and donor selection is conceptual advice for results desired and not technological operations. The Specification at paragraph 2 describes the invention as relating to a blood donor history record system. Thus, all this intrinsic evidence shows that claim 1 recites managing blood donations. This is consistent with the Examiner’s determination. This in turn is an example of managing personal behavior or relationships or interactions between people as a certain method of organizing human activity because managing medical activity such as blood donations is organizing such human activity. The concept of managing blood donations by communicating the amount of pre and post collection donation based on data and donor selection is one idea for managing the volume of such donations. The steps recited in claim 1 are part of how this might conceptually be premised. Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. Content Extraction & Appeal 2021-001106 Application 15/134,718 15 Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (collecting data, recognizing certain data within the collected data set, and storing that recognized data in a memory). Alternately, this is an example of concepts performed in the human mind as mental processes because the steps of storing, receiving, transmitting, and analyzing data mimic human thought processes of observation, evaluation, judgment, and opinion, perhaps with paper and pencil, where the data interpretation is perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016). Claim 1, unlike the claims found non-abstract in prior cases, uses generic computer technology to perform data storage, reception, transmission, and analysis and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because they “focused on a specific asserted improvement in computer animation”). As such, claim 1 recites storing, receiving, transmitting, and analyzing data, and not a technological implementation or application of that idea. From this we conclude that at least to this degree, claim 1 recites managing blood donations by communicating the amount of pre and post collection donation based on data and donor selection, which is managing personal behavior or relationships or interactions between people, one of certain methods of organizing human activity identified in the Revised Guidance, and, thus, an abstract idea. Appeal 2021-001106 Application 15/134,718 16 STEP 2A Prong 2 The next issue is whether claim 1 not only recites, but is more precisely directed to this concept itself or whether it is instead directed to some technological implementation or application of, or improvement to, this concept i.e. integrated into a practical application.7 At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, “all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Accordingly, in applying the § 101 exception, we must distinguish between patents that claim the “‘buildin[g] block[s]’” of human ingenuity and those that integrate the building blocks into something more. Alice, 573 U.S. at 217 (citations omitted). Taking the claim elements separately, the operation performed by the computer at each step of the process is expressed purely in terms of results, devoid of implementation details. Steps 2 and 3.2.1 are pure data gathering steps. Limitations describing the nature of the data do not alter this. Step 1 recites basic conventional data operations such as generating, updating, and storing data. Step 3.4 recites insignificant post solution activity, such as storing, transmitting, or displaying the results. Steps 3.1, 3.2.2, and 3.3 recite generic computer processing expressed in terms of results desired by any and all possible means and so present no more than conceptual advice. All purported inventive aspects reside in how the data is interpreted and the 7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S. 175 (1981). Appeal 2021-001106 Application 15/134,718 17 results desired, and not in how the process physically enforces such a data interpretation or in how the processing technologically achieves those results. Viewed as a whole, Appellant’s claim 1 simply recites the concept of managing blood donations by communicating the amount of pre and post collection donation based on data and donor selection as performed by a generic computer. This is no more than conceptual advice on the parameters for this concept and the generic computer processes necessary to process those parameters, and do not recite any particular implementation. Claim 1 does not, for example, purport to improve the functioning of the computer itself. Nor does it effect an improvement in any other technology or technical field. The 23 pages of Specification do not bulge with disclosure, but only spell out different generic equipment8 and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of managing blood donations by communicating the amount of pre and post collection donation based on data and donor selection under different scenarios. They do not describe any particular improvement in the manner a computer functions. Instead, claim 1 at issue amounts to nothing significantly more than an instruction to apply managing blood donations by communicating the amount of pre and post collection donation based on data and donor selection using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent- eligible invention. See Alice, 573 U.S. at 225–26. 8 The Specification describes servers and workstations. Spec. para. 33. Appeal 2021-001106 Application 15/134,718 18 None of the limitations reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field, applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses the judicial exception in some other 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. We conclude that claim 1 is directed to achieving the result of managing blood donations by advising one to communicate the amount of pre and post collection donation based on data and donor selection, as distinguished from a technological improvement for achieving or applying that result. This amounts to commercial or legal interactions, which fall within managing personal behavior or relationships or interactions between people that constitute abstract ideas. The claim does not integrate the judicial exception into a practical application. STEP 2B The next issue is whether claim 1 provides an inventive concept because the additional elements recited in the claim provide significantly more than the recited judicial exception. The introduction of a computer into the claims does not generally alter the analysis at Mayo step two. the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Appeal 2021-001106 Application 15/134,718 19 Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implement[t]” an abstract idea “on . . . a computer,” that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our § 101 jurisprudence. Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of “additional feature[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Alice, 573 U.S. at 223–24 (citations omitted). “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer for storing, receiving, transmitting, and analyzing data amounts to electronic data query and retrieval—one of the most basic functions of a computer. All of these computer functions are generic, routine, conventional computer activities that are performed only for their conventional uses. See Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming”). None of these activities is used in some unconventional manner nor does any produce Appeal 2021-001106 Application 15/134,718 20 some unexpected result. Appellant does not contend it invented any of these activities. In short, each step does no more than require a generic computer to perform generic computer functions. As to the data operated upon, “even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018). Considered as an ordered combination, the computer components of Appellant’s claim 1 add nothing that is not already present when the steps are considered separately. The sequence of data storage-reception- transmission-analysis is equally generic and conventional. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission), Two-Way Media Ltd. v. Comcast Cable Communications, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling, and monitoring). The ordering of the steps is therefore ordinary and conventional. We conclude that claim 1 does not provide an inventive concept because the additional elements recited in the claim do not provide significantly more than the recited judicial exception. Appeal 2021-001106 Application 15/134,718 21 REMAINING CLAIMS Claim 1 is representative. The remaining dependent claims merely describe process parameters. We conclude that the claims at issue are directed to a patent-ineligible concept itself, and not to the practical application of that concept. As to the remaining structural claims, they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] ... against” interpreting § 101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any particular machine. LEGAL CONCLUSION From these determinations we further determine that the claims do not recite an improvement to the functioning of the computer itself or to any other technology or technical field, a particular machine, a particular transformation, or other meaningful limitations. From this we conclude the claims are directed to the judicial exception of the abstract idea of certain methods of organizing human activity as exemplified by the managing personal behavior or relationships or interactions between people of managing blood donations by advising one to communicate the amount of pre and post collection donation based on data and donor selection, without significantly more. Appeal 2021-001106 Application 15/134,718 22 APPELLANT’S ARGUMENTS As this is a new ground, we respond to Appellant’s arguments in the remarks filed November 21, 2018. The Examiner withdrew the prior eligibility rejection in the next action, making these the most recent arguments. As to claim 1, Appellant argued: Claim 1 is amended to recite a processing circuit configured to “provide an indication of a pre collection blood component the donor may donate and a post collection blood component the donor may donate.” . . . When a blood donor comes to a donation facility that can collect blood components, such as platelets, red blood cells, plasma, etc., a technician must decide which component or components to collect at that particular visit. One limitation on the component that can be collected is that a donor may only contribute predetermined amounts over a 12 month period. Other factors in the decision may include the needs or inventory of the facility, the availability of collection devices of different types, donor profile information, etc. The task of the technician can be overwhelming. The system of Claim 1 as amended not only determines an amount a donor may donate based on records from previous donations, but also provides indications of pre collection blood components the donor may donate and post collection blood components the donor may donate. In some embodiments, the post collection amount may be informed by an average of counts of previous donations (e.g., Claim 22, supported at para. [0055]). The provision of pre and post collection blood components the donor may donate may make the scheduling and/or blood component selection process easier on a person tasked with scheduling blood donations. (para. [0021]). Further, the provision of pre and post collection blood components the donor may donate may reduce errors associated with scheduling a donor for a donation that exceeds the donor's donation limit in a predetermined period of time. (para. [0022]). Appeal 2021-001106 Application 15/134,718 23 Remarks 8. The problem for Appellant is that the claim only recites “provide an indication of a pre collection blood component the donor may donate and a post collection blood component the donor may donate.” The claim recites no implementation details, and particularly, no technological implementation details. Providing an indication is data entry or at best generic data analysis. The claims do not tie such data entry or analysis to any technological source. Thus the limitation encompasses primitive user data entry. As to claim 11, we are not persuaded by Appellant’s argument that claim 11 is now tied to a blood collection device and the interaction between a server computer, a mobile computing device, and the blood collection device, arranged in a distributed manner to simplify the task of selecting blood components for collection and transmitting instructions to the blood regarding what components to collect and donor parameters to the blood collection device. Remarks 9. Although claim 11 recites “a blood collection device configured to perform an apheresis function to collect blood components,” the remainder of the claim does not recite any use for the device or its physical output. Instead, like claim 1, the operations recited are those of data reception, transmission, and analysis. The data analysis as such is not recited as being upon the output from the blood collection device. The two receiving steps of receiving data representing the number of platelet and volume of a blood component donations do not recite how such reception occurs or where the data originates, and so do not tie in the blood collection device. Simply adding the blood collection device to the claim does not confer eligibility because it is conventional to perform an apheresis function to collect blood components. Appeal 2021-001106 Application 15/134,718 24 CGI’s reliance on the asserted claims being directed to “physical real world manifestation[s] of an improved machine” is misplaced. . . . Without more, the mere physical nature of CGI’s claim elements (e.g., controller, interface, and wireless data transmitter) is not enough to save the claims from abstractness, where the claimed advance is directed to the wireless communication of status information using off-the-shelf technology for its intended purpose. Chamberlain Grp., Inc. v. Techtronic Indus. Co., 935 F.3d 1341, 1348 (Fed. Cir. 2019). We are not persuaded by Appellant’s argument that the claims are not abstract in view of Thales Visionix Inc. v. United States, 850 F.3d 1343 (Fed. Cir. 2017). Remarks 10. As the opinion in SAP America stated, Similarly, in Thales Visionix Inc. v. United States . . . the improvement was in a physical tracking system. The use of mathematics to achieve an improvement no more changed the conclusion that improved physical things and actions were the subject of the claimed advance than it did in Diamond v. Diehr. Here, in contrast, the focus of the claims is not a physical-realm improvement but an improvement in wholly abstract ideas—the selection and mathematical analysis of information, followed by reporting or display of the results. SAP Am., 890 F.3d at 1022 (citations omitted). As with SAP, the instant claims select and analyze information, and then display results. CONCLUSION The rejection of claims 1–9, 11–16, and 22–25 is reversed. The following new ground of rejection is entered pursuant to 37 C.F.R. § 41.50(b). Claims 1–9, 11–16, and 22–25 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. Appeal 2021-001106 Application 15/134,718 25 In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1–9, 11–16, 22–25 101 Eligibility 1–9, 11–16, 22–25 1, 2, 4–8, 11–16, 22 103 Fletcher-Haynes '769, Fletcher- Haynes '883, Fletcher, Ng 1, 2, 4–8, 11–16, 22 3 103 Fletcher-Haynes '769, Fletcher- Haynes '883, Fletcher, Ng Pierce 3 9 103 Fletcher-Haynes '769, Fletcher- Haynes '883, Fletcher, Ng, Lastinger 9 23–25 103 Fletcher-Haynes '769, Fletcher- Haynes '883 23–25 Overall Outcome 1–9, 11–16, 22–25 1–9, 11–16, 22–25 Appeal 2021-001106 Application 15/134,718 26 Our Decision is not a final agency action. This Decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. Appeal 2021-001106 Application 15/134,718 27 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)(1)(iv) (2011). REVERSED § 41.50(b) Copy with citationCopy as parenthetical citation