Kanakasabha Kailasam et al.

Patent Trials and Appeals Board

Aug 2, 2019

14258755 - (D) (P.T.A.B. Aug. 2, 2019)

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.
14/258,755 04/22/2014 KANAKASABHA KAILASAM 27098.203050 1031
46169 7590 08/02/2019
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
LE, LINH GIANG
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
BPARKERSON@SHB.COM
IPRCDKT@SHB.COM
docketing.shb@clarivate.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte KANAKASABHA KAILASAM,
BETH McCAULEY, CANDACE HALL, and
BRIAN DOUGAN1
____________________

Appeal 2018-003952
Application 14/258,755
Technology Center 3600
____________________

Before ROBERT E. NAPPI, JASON J. CHUNG, and JOYCE CRAIG,
Administrative Patent Judges.

CRAIG, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1–4, 10–12, and 17–19, which are all claims pending in
the application. Final Act. 2. Appellants have canceled claims 5–9, 13–16,
and 20. Id. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 According to Appellants, the real party in interest is Cerner Innovation,
Inc. App. Br. 3.
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STATEMENT OF THE CASE
The Invention
Appellants’ disclosed embodiments and claimed invention relate to
assisting hospitals in identifying diagnoses that impact payments for
rendered services and ensuring the diagnoses are supported. Spec. ¶ 2.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal:
1. One or more computer storage media storing
computer-useable instructions that, when used by one or more
computing devices, cause the one or more computing devices to
perform operations comprising:
identifying a diagnosis in patient data for a patient that
impacts payment for medical services rendered for the patient;
determining one or more clinical indicators required to
support the diagnosis;
determining that the patient data does not include a first
clinical indicator required to support the diagnosis;
identifying a clinical action required to obtain data for the
first clinical indicator;
generating a notice indicating that the patient data for the
patient does not include the first clinical indicator required to
support the diagnosis, the notice including a link to access a
user interface to place a clinical order for the clinical action to
obtain data for the first clinical indicator;
providing the notice to a clinician;
receiving updated patent data that includes additional
data for the first clinical data obtained via the clinical action
ordered using the link in the notice;
determining the updated patient data includes the one or
more clinical indicators required to support the diagnosis; and
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responsive to determining the updated patient data
includes the one or more clinical indicators required to support
the diagnosis, submitting billing data that includes information
identifying the diagnosis and data for the one or more clinical
indicators required to support the diagnosis.
Rejection on Appeal
Claims 1–4, 10–12, and 17–19 stand rejected under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter. Final Act. 2–8.
PRINCIPLES OF LAW
“Whether a claim is drawn to patent-eligible subject matter is an issue
of law that we review de novo.” SiRF Tech., Inc. v. Int’l Trade Comm’n,
601 F.3d 1319, 1331 (Fed. Cir. 2010).
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.2
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “‘[L]aws of nature, natural phenomena, and abstract
ideas’ are not patentable.” Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (brackets in original) (quoting Diamond v.
Diehr, 450 U.S. 175, 185 (1981)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217–18
(2014) (citing Mayo, 566 U.S. at 75–77). In accordance with that

2 This threshold analysis of whether a claim is directed to one of the four
statutory categories of invention, i.e., a process, machine, manufacture, or
composition of matter, is referred to as “Step 1” in the patent-eligibility
inquiry under § 101.
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framework, we first determine what concept the claim is “directed to.” See
Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the
concept of intermediated settlement, i.e., the use of a third party to mitigate
settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010)
(“Claims 1 and 4 in petitioners’ application explain the basic concept of
hedging, or protecting against risk . . . .”).
Concepts determined to be abstract ideas, and, thus, patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diehr, 450 U.S. at 191); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. (15 How.) 252, 267–68
(1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane
v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held “[a] claim drawn to subject matter otherwise statutory
does not become nonstatutory simply because it uses a mathematical
formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view
respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
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attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, and
mathematical formulas or relationships. Alice, 573 U.S. at 217–21. Under
this guidance, we must, therefore, ensure at step one that we articulate what
the claims are directed to with enough specificity to ensure the step one
inquiry is meaningful. Id. at 217 (“[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘“inventive
concept”’ sufficient to ‘transform’ the claimed abstract idea into a
patent-eligible application.” Alice, 573 U.S. at 221 (internal citation
omitted). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance in the Federal Register
concerning the application of § 101. 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter
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“Revised Guidance”) (https://www.govinfo.gov/content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf).
Under the Revised Guidance, we first look to whether the claim
recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
of organizing human activity such as a fundamental economic
practice, or mental processes);3 and
(2) additional elements that integrate the judicial
exception into a practical application (see MANUAL OF PATENT
EXAMINING PROCEDURE (“MPEP”) §§ 2106.05(a)–(c), (e)–(h)
(9th ed., Rev. 08.2017, Jan. 2018)).4
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial
exception that are not “well-understood, routine, conventional”
in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.5
See Revised Guidance.
ANALYSIS
Based on Appellants’ arguments (App. Br. 6–20) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of the patent-

3 Referred to as “Revised Step 2A, Prong 1” in the Revised Guidance
(hereinafter “Step 2A(i)”).
4 Referred to as “Revised Step 2A, Prong 2” in the Revised Guidance
(hereinafter “Step 2A(ii)”).
5 Items (3) and (4) continue to be collectively referred to as “Step 2B” of the
Supreme Court’s two-step framework, described in Mayo and Alice.
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ineligible subject matter rejection of claims 1–4, 10–12, and 17–19 on the
basis of representative claim 1.
Step 1
Claim 1, as a computer-readable medium (manufacture) claim, recites
one of the enumerated categories of eligible subject matter in 35 U.S.C.
§ 101. Therefore, the issue before us is whether it is directed to a judicial
exception without significantly more.
Step 2A(i): Does the Claim Recite a Judicial Exception?
The Examiner determined that claim 1 is directed to the abstract idea
of “identifying diagnoses that impact payments for rendered services
and ensuring diagnoses,” which the Examiner concluded was an idea of
itself and a certain method of organizing human activities. Final Act. 3–5.
We evaluate whether claim 1 recites an abstract idea based upon the
Revised Guidance. We conduct our review for abstractness de novo.
Claim 1 recites, in pertinent part:
identifying a diagnosis in patient data for a patient that
impacts payment for medical services rendered for the patient;
determining one or more clinical indicators required to
support the diagnosis;
determining that the patient data does not include a first
clinical indicator required to support the diagnosis;
identifying a clinical action required to obtain data for the
first clinical indicator;

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. . .
determining the updated patient data includes the one or
more clinical indicators required to support the diagnosis; . . . .
Claims App’x.
We determine that these limitations of claim 1, identified by the
Examiner (Final Act. 3), recite mental processes that may be performed in
the human mind, and that may also practicably be performed by pen and
paper.6 The type of recited activity, i.e., identifying and determining patient
information as recited in the limitations above, for example, includes
longstanding conduct that existed well before the advent of computers and
the Internet, and could be carried out by a human with pen and paper.
See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed.
Cir. 2011) (“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.”).
We also determine that claim 1 recites certain methods of organizing
human activity because the claim is directed to commercial interactions at
hospitals. Among those certain methods of organizing human activity listed
in the Revised Guidance are commercial or legal interactions. We agree

6 Our reviewing court recognizes that “[a]n abstract idea can generally be
described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc.,
842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does
not, “impact the patentability analysis.” Id. at 1241. Moreover, merely
combining several abstract ideas does not render the combination any less
abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed.
Cir. 2017) (“Adding one abstract idea (math) to another abstract idea . . .
does not render the claim non-abstract.”); see also FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (determining the
pending claims were directed to a combination of abstract ideas).
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with the Examiner that “the pending claims describe a process used in many
business entities of applying business rules to check and ensure the accuracy
of data.” Final Act. 5. In particular, we agree with the Examiner that
the pending claims teach the long prevalent practice of human
auditors auditing patient health data with a list of relevant
characteristics that could be kept in the auditor’s head or written
on paper. The court also discusses in Intellectual Ventures[7]
that mailrooms receive correspondence and apply business rules
defining actions to be taken based on the application of those
business rules. Much in the same way, the pending claims
describe a process used in many business entities of applying
business rules to check and ensure the accuracy of data. In the
pending case it is determined if there exists clinical indicators
to support a diagnosis.
Final Act. 4–5.
Thus, under Step 2A(i), we agree with the Examiner that claim 1
recites a judicial exception of mental processes and certain methods of
organizing human activity and, thus, an abstract idea.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the “practical application” Step 2A(ii) in
which we determine whether the recited judicial exception is integrated into
a practical application of that exception by: (a) identifying whether there are
any additional elements recited in the claim beyond the judicial exception(s);
and (b) evaluating those additional elements individually and in combination
to determine whether they integrate the exception into a practical
application.

7 Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363
(Fed. Cir. 2015).
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We find each of the limitations of claim 1 recites abstract ideas as
identified in Step 2A(i), supra, and none of the limitations integrates the
mental processes into a practical application. The claim as a whole merely
uses instructions to implement the abstract idea on a computer or,
alternatively, merely uses a computer as a tool to perform the abstract idea.
The limitations that do not define the mental processes (i.e., “additional
elements”) do not improve the function of a computer or to another technical
field. Instead, they involve insignificant extra-solution activity that merely
makes use of computer technology.
The additional elements recited in claim 1 include “[o]ne or more
computer storage media,” “computing devices,” and the “generating,”
“providing,” receiving,” and “submitting” steps. The recited computer
storage media and computing devices are generic computer devices that are
insufficient to integrate the abstract idea into a practical application. Final
Act. 5 (citing Spec. ¶ 18); see also Spec. ¶ 20. Instructing one to “apply” an
abstract idea and reciting no more than generic computer elements
performing generic computer tasks does not make an abstract idea patent
eligible. See Alice, 573 U.S. at 225–26 (holding patent ineligible claims that
“amount to nothing significantly more than an instruction to apply the
abstract idea . . . using some unspecified, generic computer” and in which
“each step does no more than require a generic computer to perform generic
computer functions” (internal quotation marks, citation omitted)).
The recited steps of “generating” and “providing” a notice,
“receiving” updated patient data, and “submitting” billing data amount to
insignificant post-solution activity and, thus, cannot transform the claimed
abstract idea into a patent-eligible application. See Bilski, 561 U.S. at
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610–11 (explaining that the prohibition against patenting an ineligible
concept, such as an abstract idea, “‘cannot be circumvented by attempting to
limit the use of the [abstract idea] . . . to a particular technological
environment’ or adding ‘insignificant post-solution activity”’) (internal
citations omitted). Claim 1 does not recite any particulars as to how the
notice is generated or provided, how the updated data is received, or how the
billing data is submitted. These are conventional processing functions that
courts have routinely found insignificant to transform an abstract idea into a
patent-eligible invention. See, e.g., Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1354–55 (Fed. Cir. 2016). As such, the claims amount to
nothing significantly more than an instruction to implement the abstract idea
on a generic computer—which is not enough to transform an abstract idea
into a patent-eligible invention. See Alice, 573 U.S. at 226.
Appellants argue that the claims are directed to an inventive concept
that provides “a technology-based solution to a technological problem to
affect an improvement in a technology field.” App. Br. 15. Appellants
argue that, “[a]s in DDR, the features of the claims are necessarily rooted in
technology and provide an improvement to a technological process.”
Appellants further argue that, “[a]s in Bascom, the patent application
‘describes how its particular arrangement of elements is a technical
improvement over prior art ways.’” Id. at 17.
Appellants’ argument that claim 1 is similar to the claims in DDR
Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014), is
not persuasive. See App. Br. 14–17. In DDR, the court determined that the
claims at issue were necessarily rooted in computer technology in order to
address the Internet-centric problem of how to provide user access to
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computer-implemented applications over the Internet. DDR, 773 F.3d at
1257. In contrast, the additional elements of claim 1 are not necessarily
rooted in computer technology, because the recited features could also occur
outside the context of computer technology.
Appellants’ arguments based on BASCOM Global Internet Services,
Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016), are also
not persuasive. See App. Br. 15–17. In BASCOM, the claims were directed
to the inventive concept of providing customizable Internet-content filtering
which, under Step 2 of the Alice analysis, was found to transform the
abstract idea of filtering content into a patent-eligible invention. Although
the underlying idea of filtering Internet content was deemed abstract, under
step 2 of the Alice analysis, the claims carved out a specific location for the
filtering system, namely a remote Internet service provider (ISP) server, and
required the filtering system to give users the ability to customize filtering
for their individual network accounts. Here, there is insufficient evidence of
record to substantiate the assertion that the claims recite non-conventional
and non-generic arrangement of known, conventional elements, as in
BASCOM. Moreover, we find no analogy between Appellants’ claimed
automated survey and the Internet content filtering claims in BASCOM.
Thus, on this record, Appellants have not shown eligibility under the
guidance of the MPEP section 2106.05(a) (“Improvements to the
Functioning of a Computer or to Any Other Technology or Technical Field”)
or section 2106.05(e) (“Other Meaningful Limitations”). Nor do Appellants
advance any arguments in the Brief(s) that are directed to the Bilski
machine-or-transformation test, which would only be applicable to the
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method (process) claims on appeal. See MPEP §§ 2106.05(b) (Particular
Machine) and 2106.05(c) (Particular Transformation).
Therefore, we conclude the abstract idea is not integrated into a
practical application, and, thus, the claim is directed to the judicial
exception.
Step 2B – “Inventive Concept” or “Significantly More”
If the claims are directed to a patent-ineligible concept, as we
conclude above, we proceed to the “inventive concept” step. For Step 2B we
must “look with more specificity at what the claim elements add, in order to
determine ‘whether they identify an “inventive concept” in the application of
the ineligible subject matter’ to which the claim is directed.” Affinity Labs
of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258 (Fed. Cir. 2016)
(quoting Elec. Power Grp., 830 F.3d at 1353).
In applying step two of the Alice analysis, our reviewing court guides
we must “determine whether the claims do significantly more than simply
describe [the] . . . abstract method” and, thus, transform the abstract idea into
patentable subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014). We look to see whether there are any “additional
features” in the claims that constitute an “inventive concept,” thereby
rendering the claims eligible for patenting even if they are directed to an
abstract idea. Alice, 573 U.S. at 221 (internal quotation marks, citation
omitted). Those “additional features” must be more than “well-understood,
routine, conventional activity.” Mayo, 566 U.S. at 79.
Evaluating representative claim 1 under step 2 of the Alice analysis,
we conclude it lacks an inventive concept that transforms the abstract mental
processes into a patent-eligible application of that abstract idea.
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The Examiner found that the “generating,” “providing,” receiving,”
and “submitting” steps in claim 1 are generic computer functions that are
well-understood, routine, and conventional activities previously known to
the health care data analysis industry. Final Act. 6. The Examiner also
found that the recited computer storage media and computing devices in
claim 1 are generic computer structure that serves to perform generic
computer functions that serve to merely link the abstract idea to a particular
technological environment. Id.
The Examiner’s findings are supported by the Specification, which
describes:
1) “computer storage media” includes, without limitation,
volatile and nonvolatile media, as well as removable and
nonremovable media implemented in any method or
technology for storage of information, such as computer
readable instructions, data structures, program modules, or
other data. Spec. ¶ 21.
2) “computing device” includes a server. Spec. ¶ 20.
3) the present invention is operational with numerous general
purpose or special purpose computing system environments
or configurations, and provides examples of suitable well-
known computing systems, environments, and/or
configurations. Spec. ¶ 18.
The generic computing devices described in the Specification are
well-understood, routine, and conventional, at least because the
Specification describes the computers in a manner that indicates they are
sufficiently well-known that the Specification does not need to describe the
particulars of such additional elements to satisfy 35 U.S.C. § 112(a). See
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Berkheimer Memo § III.A.1.8,9
Appellants argue that claim 1 includes elements that are not
well-understood, routine, and conventional “as evidenced by the absence of
any prior art rejections.” App. Br. 17.
In response, we note the Supreme Court emphasizes, “[t]he ‘novelty’
of any element or steps in a process, or even of the process itself, is of no
relevance in determining whether the subject matter of a claim falls within
the § 101 categories of possibly patentable subject matter.” Diehr, 450 U.S.
at 188–89. Our reviewing court further guides that “[e]ligibility and novelty
are separate inquiries.” Two-Way Media Ltd. v. Comcast Cable Commc’ns,
LLC, 874 F.3d 1329, 1340 (Fed. Cir. 2017); see also Affinity Labs of Tex.,
LLC v. DIRECTV, LLC, 838 F.3d 1253, 1263 (Fed. Cir. 2016) (holding that
“[e]ven assuming” that a particular claimed feature was novel does not
“avoid the problem of abstractness”).
For these reasons, we sustain the Examiner’s § 101 rejection of
independent claims 1 and grouped claims 2–4, 10–12, and 17–19, not argued
separately, and which fall therewith.

8 Robert W. Bahr, Changes in Examination Procedure Pertaining to Subject
Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v.
HP, Inc.) (Apr. 19, 2018) (USPTO) (available at https://www.uspto.gov/
sites/default/files/documents/memo-berkheimer-20180419.PDF) (explaining
that a specification that describes additional elements “in a manner that
indicates that the additional elements are sufficiently well-known that the
specification does not need to describe the particulars of such additional
elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well
understood, routine, and conventional) (id. at 3).
9 Claim terms are to be given their broadest reasonable interpretation, as
understood by those of ordinary skill in the art and taking into account
whatever enlightenment may be had from the Specification. In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
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DECISION
We affirm the Examiner’s decision rejecting claims 1–4, 10–12, and
17–19.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED