Lasse TOIMELA et al.Download PDFPatent Trials and Appeals BoardMar 31, 20212020004484 (P.T.A.B. Mar. 31, 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. 13/249,669 09/30/2011 Lasse TOIMELA VAR-11-001 2461 78145 7590 03/31/2021 Murabito, Hao & Barnes LLP (Varian) 111 North Market Street Suite 700 San Jose, CA 95113 EXAMINER COBANOGLU, DILEK B ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 03/31/2021 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): Officeaction@mhbpatents.com ipdocket@varian.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LASSE TOIMELA, JANNE NORD, and COREY ZANKOWSKI Appeal 2020-004484 Application 13/249,669 Technology Center 3600 ____________ Before ANTON W. FETTING, AMEE A. SHAH, and MATTHEW S. MEYERS, Administrative Patent Judges. MEYERS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant appeals from the Examiner’s Final decision to reject claims 1, 2, 4–11, 13, 14, 16–22, and 25–28, which are all of the pending claims.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Varian Medical Systems International AG as the real party in interest. Appeal Br. 1. Appeal 2020-004484 Application 13/249,669 2 CLAIMED INVENTION Appellant’s claimed invention relates to “the field of radiation therapy treatment plan development and optimization.” Spec. ¶ 1. Claims 1 and 13 are the independent claims on appeal. Claim 1, reproduced below, with modified formatting and bracketed notations, is illustrative of the claimed subject matter. 1. A computer system comprising: [a] a memory having computer-readable and computer- executable instructions embodied therein for executing a treatment planning system; [b] the computer system operable to execute the treatment planning system and perform a method for improving a radiation therapy treatment plan for a patient, the method comprising: [c] accessing a patient record for the patient, the patient record comprising a three-dimensional reconstruction of the patient’s anatomy generated by combining two-dimensional image slices; [d] generating, by executing a dose distribution mapping module of the treatment planning system, a three-dimensional second dose distribution map based on a first dose distribution map of the radiation treatment plan, the three dimensional reconstruction from the patient record, and a selected treatment type, the second dose distribution map included in an optimized version of the radiation therapy treatment plan; [e] the treatment planning system comprising an optimization system, wherein the optimization system receives inputs, maps the inputs into parameters and into operations to be performed during optimization, identifies a parameter that, if changed, affects a value of a first metric associated with the optimized radiation therapy treatment plan, determines an alternative treatment step for the optimized first radiation Appeal 2020-004484 Application 13/249,669 3 therapy treatment plan that will change the parameter and improve the value of the first metric relative to an average value for the first metric that is determined using patient records in a database, receives a decision on the alternative treatment step, and includes the decision in a rule set stored in the memory and used by the optimization system to generate radiation therapy treatment plans. Appeal Br. 16–17 (Claim App.). REJECTIONS Claims 1, 2, 4–11, 13, 14, 16–22, and 25–28 stand rejected under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. Claims 1, 2, 4–11, 13, 14, 16–22, 27, and 28 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Krishnan (US 7,844,560 B2; iss. Nov. 30, 2010), Robar (US 6,668,073; iss. Dec. 23, 2003), and Bertram (WO 2011/048515 A2; pub. April 28, 2011). Claims 25 and 26 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Krishnan, Robar, Bertram, and Fröhlich (US 6,719,683 B2; iss. April 13, 2004). Claims 1, 2, 4–11, 13, 14, 16–22, and 25–28 are rejected on the ground of non-statutory obviousness-type double patenting over claims 1–30 of Zankowski (US 8,774,358 B2; iss. July 8, 2014) in view of Gizewski (US 2008/0161661 A1; pub. July 3, 2008). Appeal 2020-004484 Application 13/249,669 4 ANALYSIS Patent-Ineligible Subject Matter Appellant argues claims 1, 2, 4–11, 13, 14, 16–22, and 25–28 as a group. Appeal Br. 12–14; Reply Br. 1–2. We select independent claim 1 as representative. The remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). 35 U.S.C. § 101 Framework Section 101 An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the U.S. 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. E.g., Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Court’s two-part framework, described in Mayo and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that 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.”). Appeal 2020-004484 Application 13/249,669 5 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, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); 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 Court held that “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, 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 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 attempting to limit the use of the formula to a particular technological environment.” 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.”), 191 (citing Benson and Flook) (citation omitted). Appeal 2020-004484 Application 13/249,669 6 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 (quotation marks 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. USPTO Section 101 Guidance We are also guided by U.S. Patent and Trademark Office (“USPTO”) Guidance, as set forth in the 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance, 84 Fed. Reg.”), incorporated into the MANUAL OF PATENT EXAMINING PROCEDURE §§ 2104–06, Rev. 10.2019 (“MPEP”) in June 2020. “The guidance sets out agency policy with respect to the USPTO’s interpretation of the subject matter eligibility requirements of 35 U.S.C. [§] 101 in view of decisions by the Supreme Court and the Federal Circuit.” Guidance, 84 Fed. Reg. at 51.2 Although “[a]ll USPTO personnel are, as a matter of internal agency 2 In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance, 84 Fed. Reg. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”) (available at https://www.uspto.gov/sites/default/ files/documents/peg_oct_2019_update.pdf). Appeal 2020-004484 Application 13/249,669 7 management, expected to follow the guidance,” the Guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO.” Id. The Guidance, by its terms, applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019. Id. at 50. Under the USPTO Guidance and October 2019 Update, we first look to whether the claim recites: (1) any judicial exceptions, including laws of nature, natural phenomena, and products of nature (see MPEP §§ 2106.04(II)(A)(1), 2106.04(b)) (“Step 2A, Prong One”); and (2) additional elements that integrate the judicial exception into a practical application (see id. §§ 2106.04(II)(A)(2), 2106.04(d)) (“Step 2A, Prong Two”).3 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the additional elements, individually or in combination, provide an inventive concept. See MPEP §§ 2106(III), 2106.05. “An inventive concept ‘cannot be furnished by the unpatentable law of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05 (quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376, (Fed. Cir. 2016)). 3 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application, as the term is used in USPTO Guidance. See Guidance — Section III(A)(2), 84 Fed. Reg. 54–55; MPEP § 2106.04(d). Appeal 2020-004484 Application 13/249,669 8 Among the considerations in determining whether the additional elements, individually or in combination, amount to significantly more than the exception itself, we look to whether they add a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field or simply append well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. MPEP § 2106.05(II); Guidance, 84 Fed. Reg. 56. Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework and Step 2A, Prong One of USPTO Guidance, the Examiner determines that exemplary independent claim 1 recites broadly “an abstract idea of ‘generating a treatment plan.’” Final Act. 6. More particularly, the Examiner states that independent claim 1 recite[s] “generating a second dose distribution map based on a first dose distribution map of the radiation treatment plan, the three dimensional reconstruction from the patient record, and a selected treatment type[], determining an alternate treatment step . . . and generating treatment plans,” which is a mental process (which can be done in the human mind or by human using pen and paper). For instance, a medical professional can determine a second dose distribution map based on the data. Id. The Examiner further states that claim 1 “recite[s] ‘receiving a decision on the alternative step and including the decision in a rule set’, which is [sic] certain methods of organizing human activity.” Id. Under Prong Two of the USPTO Guidance, the Examiner determines that the identified judicial Appeal 2020-004484 Application 13/249,669 9 exception is not integrated into a practical application “because the claim is directed to an abstract idea with additional generic computer elements, such as ‘accessing a patient record, receiving inputs, mapping inputs into parameters and operations and identifying a parameter that if changed . . . and generating a three-dimensional first dose distribution map.’” Id. at 7. In response, Appellant asserts that the Examiner improperly characterizes the claims as being directed to an abstract idea. Appeal Br. 12; Reply Br. 1. Instead, Appellant argues that “the claims recite a treatment planning system implemented with a computer system.” Appeal Br. 12 (“[T]he claims recite a three-dimensional (3D) reconstruction of the patient’s anatomy generated by combining two-dimensional (2D) image slices, where the 3D reconstruction is used by the treatment planning system to generate a 3D dose distribution map.”). Appellant also argues that the claims are patent eligible because they provide “a solution to the challenges in improving radiation therapy and radiation therapy treatment planning.” Reply Br. 2. Under the first step of the Mayo/Alice framework and Step 2A of the USPTO Guidance, we first determine to what claim 1 is directed, i.e., whether claim 1 recites an abstract idea and if so, whether claim 1 is directed to that abstract idea. The Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the Appeal 2020-004484 Application 13/249,669 10 claim is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See id. at 1335–36. Here, it is clear from the Specification, including the claim language, that claim 1 focuses on an abstract idea, and not on any improvement to technology and/or a technical field. Reciting a Judicial Exception In making this determination, we note that the Specification is titled “SEMANTIC RADIATION TREATMENT PLAN OPTIMIZATION GUIDANCE,” and states that the disclosure relates “to the field of radiation therapy treatment plan development and optimization.” Spec. ¶ 1. According to the Specification, Oncology and Radiotherapy technology continues to evolve, accelerating the expansion of the envelope of possible treatments and best practices associated with those possible treatments. At the same time, the complexity of clinical decisions is increasing non-linearly, resulting in a rapidly widening gap between actual practice and best practices, especially in emerging markets. Id. ¶ 2. The Specification acknowledges that it was known in art to use three-dimensional reconstructions of a patient’s anatomy (see, e.g., id. ¶¶ 3–4) in order to create improved radiation therapy treatment plans that target “precise areas of the body” with “an optimal radiation field directionality and count.” Id. ¶¶ 5–6. However, the Specification identifies that “this is an iterative trial and error process and can be time consuming.” Id. ¶ 6. To address this drawback, the present invention provides “improved Appeal 2020-004484 Application 13/249,669 11 methods for realizing and communicating improved results using emerging technological innovations.” Id. ¶ 7. Consistent with this disclosure, independent claim 1 recites “[a] computer system” comprising “memory” and “computer-executable instructions . . . for executing a treatment planning system” (limitation [a]) and “a method for improving a radiation therapy treatment plan for a patient” (limitation [b]). The system includes operations for “accessing a patient record for the patient” (limitation [c]) and “generating . . . a three- dimensional second dose distribution map” which is “included in an optimized version of the radiation therapy treatment plan,” and “based on a first dose distribution map[],the patient record, and a selected treatment type” (limitation [d]). Additionally, “the treatment planning system compris[es] an optimization system,” that receives information, i.e., “receives inputs, maps the inputs into parameters and into operations to be performed during optimization,” parses information, i.e., “identifies a parameter that, if changed, affects a value of a first metric associated with the optimized radiation therapy treatment plan,” analyzes information, i.e., “determines an alternative treatment step for the optimized first radiation therapy treatment plan that will change the parameter and improve the value of the first metric relative to an average value for the first metric that is determined using patient records in a database,” receives additional information, i.e., “receives a decision on the alternative treatment step,” and outputs information, i.e., “includes the decision in a rule set stored in the memory and used by the optimization system to generate radiation therapy treatment plans” (limitation [e]). Appeal Br. 16–17 (Claim App.). Appeal 2020-004484 Application 13/249,669 12 When considered collectively and under the broadest reasonable interpretation, we agree with the Examiner that independent claim 1, as summarized above, recites broadly a system for “generating a treatment plan,” which may be characterized in the form of a mental process, i.e., “[a] concept[] performed in the human mind (including an observation, evaluation, judgment, opinion).” Final Act. 6; Guidance, 84 Fed. Reg. 52; MPEP § 2106.04(a)(2)(III).4 As such, we are unpersuaded by Appellant’s assertion that because “the claimed treatment planning system [is] implemented with a computer system and/or the claimed 3D reconstruction,” the Examiner mischaracterized independent claim 1 as an abstract idea comprising “[m]ental processes—concepts performed in the human mind (including an observation, evaluation, judgment, opinion).” And, as discussed more fully below with respect to Prong Two, simply reciting a “treatment planning system implemented with a computer system” and “3D reconstruction” of the patient’s anatomy does not change the result that the claim recites an abstract idea. At best, the specific physical elements “limit[] the invention to a technological environment for which to apply the underlying abstract concept.” Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (“Capital One Fin.”). 4 We also agree with the Examiner that claim 1 may be characterized as falling under the category of “[c]ertain methods of organizing human activity” and more specifically “managing personal behavior or relationships or interactions between people (including . . . following rules or instructions).” Guidance, 84 Fed. Reg. 52; MPEP § 2106.04(a)(2)(II). Appeal 2020-004484 Application 13/249,669 13 Generating a treatment plan is similar to the concepts found abstract in University of Florida Research Foundation, Inc. v. General Electric Co., 916 F.3d 1363, 1366–68 (Fed. Cir. 2019) (Claim for standardizing data to be conveyed to a bedside device for graphical display was directed to the abstract idea of “collecting, analyzing, manipulating, and displaying data.”), Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d at 1339–40 (Claim for manipulating XML documents by organizing, identifying, mapping, defining, and modifying data was directed to the abstract idea of “collecting, displaying, and manipulating data.”), and Electric Power Group, LLC v. Alstom S.A., 830 F.3d at 1351–54 (Claim for detecting events by receiving, detecting, analyzing, displaying, accumulating, and updating data, and deriving a composite indicator from that data was directed to the abstract idea of “collecting information, analyzing it, and displaying certain results of the collection and analysis.”). Having concluded that claim 1 recites a judicial exception under the Guidance, Step 2A, Prong One, we next consider whether the claim recites additional elements that integrate the judicial exception into a practical application. Integration into a Practical Application We look to whether the claim “appl[ies], rel[ies] on, or use[s] 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,” i.e., “integrates a judicial exception into a practical application.” Guidance, 84 Fed. Reg. 54; MPEP § 2106.04(d). Here, the only additional elements recited in claim 1, i.e., Appeal 2020-004484 Application 13/249,669 14 elements beyond the abstract idea, are the “memory” and “computer system” — elements that, as the Examiner observes (see Final Act. 13–14), are recited with a “high-level of generality (such as a generic processor performing generic computer function of generating a treatment plan based on received information and transmission of data) such that it amounts no more than mere instructions to apply the exception using a generic computer component.” Ans. 4. And, to the extent Appellant suggests that the addition of a “a three-dimensional (3D) reconstruction of the patient’s anatomy generated by combining two-dimensional (2D) image slices, where the 3D reconstruction is used by the treatment planning system to generate a 3D dose distribution map” may impose a meaningful limit on the identified judicial exception (Appeal Br. 12–14), we cannot agree. Here, as discussed above, we note that the Specification acknowledges that it was known in art to use three-dimensional reconstructions of a patient’s anatomy (see, e.g., Spec. ¶¶ 3–4) in order to create improved radiation therapy treatment plans that target “precise areas of the body” with “an optimal radiation field directionality and count.” Id. ¶¶ 5–6. As is clear from the Specification, there is no indication that the processes recited in claim 1 require any specialized computer hardware or other inventive computer components, i.e., a particular machine, invoke any asserted inventive programming, or that the claimed invention is implemented using other than generic computer components to perform generic computer functions. See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) (“[A]fter Alice, there can remain no doubt: recitation of generic computer limitations does not make an otherwise Appeal 2020-004484 Application 13/249,669 15 ineligible claim patent-eligible.”). Independent claim 1, unlike the claims found non-abstract in prior cases, uses generic computer technology to access, analyze, and present information for the purpose of “generating a treatment plan” (Final Act. 6), and does not recite an improvement to a particular computer technology. Cf. 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.”). We also find no indication in the Specification that the claimed invention as recited in claim 1 effects a transformation or reduction of a particular article to a different state or thing. Appellant argues that independent claim 1 “improves another technology” by “provid[ing] a solution to the challenges in improving radiation therapy and radiation therapy treatment planning.” Reply Br. 2 (citing Spec. ¶¶ 17, 28). More particularly, Appellant argues that through “the use of a knowledge base incorporating patient records and statistical models” the claimed invention “offer[s] treatment alternatives to achieve improved clinical intents for users and clinician.” Id. (citing Spec. ¶¶ 17, 28). However, the focus of independent claim 1 is not on any technological advancement to the way computers operate, but rather on the implementation of the abstract idea, “for which computers are invoked merely as a tool.” See Enfish, 822 F.3d at 1336. Here, the claimed process of accessing patient information and then generating an improved or alternative (i.e., second) treatment plan based on a series of steps for receiving information, parsing information, analyzing information, receiving Appeal 2020-004484 Application 13/249,669 16 additional information, and outputting information is recited without any technological details on how the steps are performed technologically other than using a conventional computer in its ordinary capacity to perform data analysis. See, e.g., Spec. ¶ 30 (“With prior patient records and statistical models in a knowledge base 102, the Optimizer 218 has the ability to mine the ‘data’ found in the knowledge base 102 and generate statistics, or analyze different metrics and look for distributions in those metrics.”). Any improvement in “radiation therapy and radiation therapy treatment planning” (Reply Br. 2) is not a technical or technological improvement; but rather a business improvement. Cf. OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (Holding that claims are directed to “the abstract idea of offer-based price optimization.”); Enfish, 822 F.3d at 1336 (Focusing on whether the claim is “an improvement to [the] computer functionality itself, not on economic or other tasks for which a computer is used in its ordinary capacity.”). See also Bridge & Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 893 (Fed. Cir. 2019) (“The ability to run a more efficient advertising campaign, even if novel, and even if aided by conventional computers, is an advance ‘entirely in the realm of abstract ideas,’ which we have repeatedly held to be ineligible.”). Thus, we are not persuaded of error in the Examiner’s determination that the additional elements of claim 1 do not integrate the judicial exception into a practical application, as the term is used in USPTO Guidance, and we are not persuaded of error in the Examiner’s determination that claim 1 is directed to an abstract idea. Appeal 2020-004484 Application 13/249,669 17 Step Two of the Mayo/Alice Framework Under the second step in the Alice framework and USTPO Guidance Step 2B, we “[e]valuat[e] additional elements to determine whether they amount to an inventive concept [which] requires considering them both individually and in combination to ensure that they amount to significantly more than the judicial exception itself.” MPEP § 2106.05(I). Here, the Examiner determines [t]he claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception because the additional elements only “accessing a patient record, receiving inputs, mapping inputs into parameters and operations and identifying a parameter that if changed . . .”are well- understood, routine, conventional computer functions as recognized by the court decisions listed in MPEP § 2106.05(d). Final Act. 7. See also Elec. Power, 830 F.3d at 1355 (gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent-eligible invention); OIP Techs, 788 F.3d at 1363 (Claims reciting, inter alia, sending messages over a network, gathering statistics, using a computerized system to automatically determine an estimated outcome, and presenting offers to potential customers found to merely recite “‘well-understood, routine conventional activit[ies],’ either by requiring conventional computer activities or routine data-gathering steps.”) (alteration in original). Appellant does not specifically address the Examiner’s determination. Instead, Appellant argues that “the claimed features and their ordered combination (considered as a whole) comprise unconventional operations Appeal 2020-004484 Application 13/249,669 18 that meaningfully confine the claims to that particular useful application and that limit the application of the judicial exception, so that the claims do not monopolize the exception.” Reply Br. 2. However, other than asserting that the claims “comprise unconventional operations,” Appellant provides no further argument, such as how the elements are arranged in a non-generic or unconventional manner such that it is a technical improvement over prior art ways of “generating a treatment plan.” See BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1351 (Fed. Cir. 2016). We are not persuaded, on the present record, that the Examiner erred in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we sustain the Examiner’s rejection of independent claim 1, and claims 2, 4–11, 13, 14, 16–22, and 25–28, which fall with independent claim 1. Obviousness We are not persuaded of error by Appellant’s argument that the combination of Krishnan, Robar, and Bertram fails to disclose or suggest limitation [e], as recited by independent claim 1, and similarly recited by independent claim 13. Appeal Br. 8–11. Instead, we agree with the Examiner that the combination of Krishnan, Robar, and Bertram discloses the argued limitation. See Final Act. 8–9 (citing Krishnan, 1:54–2:15, 2:33–40, 6:51–62, 7:17–21, 11:41–58, 13:40–44, 13:56–14:11), 16–17; Ans. 3–4. Krishnan is directed to a radiation treatment planning system that uses patient specific information in addition to generic models from clinical trials or other sources in order to predict appropriate radiation doses for individual Appeal 2020-004484 Application 13/249,669 19 patients. Krishnan, 1:13–21, 3:4–16. More particularly, Krishnan discloses a method for automated treatment planning with individual specific consideration. Patient specific values are applied to a prognostic model. A probability of survival is output from the prognostic model in response to the applying. A first dose is input, as a function of the probability of survival, to an inverse treatment planning system. A radiation treatment plan is output from the inverse treatment planning system in response to the first dose. Id. at 2:33–40. Krishnan describes that “[t]he dosage and tolerance are output to an inverse treatment planning system (ITPS). The ITPS and prognosis model or dose distributions determined by the prognosis model may be used iteratively to optimize an achievable treatment plan.” Id. at 4:1–5. According to Krishnan, [d]ifferent variable’s relationship with outcome for a given treatment may be modeled. For example, portions of the prognosis model may provide outcome for a given dose as a function of the input variables. Different or the same modeling may be used. Any variable may be used, but statistically significant variables are preferred. Where available or desired, additional univariate relationships are modeled for a given treatment. Id. at 6:4–11. Krishnan identifies that “[t]he model creation acts may be repeated for different dosages, types of treatment, and/or complications. An array of models may be provided in the prognosis model in order to explore the possible outcomes associated with different options for a same patient.” Id. at 7:17–21, 8:38–39 (“The prognosis model provides two or more outcomes associated with two or more possible dose.”). Appeal 2020-004484 Application 13/249,669 20 Krishnan also describes that “feedback” is used to “aid[] determination of a different dose.” Id. at 10:37–39, Fig. 2 (elements 216, 220). More particularly, Krishnan discloses that [t]he dose distributions are used to determine other possible dosages that may be achievable. If these dosages are not within the [S]pecifications desired, the values can be sent back to the model, and the predicted survivability and complication probabilities, and consequently the predicted outcome (longevity, side effects, etc.) are computed for the real or achievable doses. Id. at 10:45–51. Krishnan further discloses that “[t]he selected dosages are input to an inverse treatment planning system for establishing radiation treatment parameters.” Id., Abstract. Appellant acknowledges that Krishnan discloses a computer system and the functions it performs; deriving a data-driven model, including mining or processing a database of patient information to model values’ relationships to outcome; repeating model creation acts for different dosages, treatment types, and/or complications; and an array of models that explore possible outcomes associated with different options for a patient. Appeal Br. 9 (citing Krishnan, 13:56–14:11, 6:51–62, 7:17–21). However, Appellant argues that even if Krishnan “could be read as receiving a decision on an alternative treatment step,” Krishnan fails to disclose or suggest “including the decision in a rule set, specifically a rule set used by an optimization system to generate radiation treatment plans.” Id. at 9. We disagree. Appeal 2020-004484 Application 13/249,669 21 Instead, we agree with the Examiner that Krishnan discloses “receiving a decision on an alternative treatment step” and then “including the decision in a rule set . . . used by an optimization system to generate radiation treatment plans.” Ans. 3–4. In this regard, we agree with the Examiner that “Krishnan’s ‘creation of a model for treatment’ is considered as ‘the decision on a rule set.”’ Id. at 4; cf. Spec. ¶ 32 (“The optimization system 218 can utilize the initial parameters set by the clinician, and based on those parameters and statistical models in the knowledge base can produce the initial treatment plan result.”). We also note that Krishnan describes providing feedback to aid determination of different doses. Krishnan, 10:37–39. Krishnan further describes that “feedback may be provided even where the treatment plan satisfies the tumor dose and the normal tissue tolerance” (id. at 10:52–53), and if “[i]f these dosages are not within the specifications desired, the values can be sent back to the model.” Id. at 10:46–51; cf. Spec. ¶ 58 (“[T]he Optimizer 218 receives feedback from the clinician/user in clinically meaningful human understandable language, why a particular improvement alternative was not selected.”). Thus, we agree with the Examiner that Krishnan discloses the argued limitation. Ans. 4 In view of the foregoing, we sustain the Examiner’s rejection of independent claims 1 and 13. We also sustain the rejections of dependent claims 2, 4–11, 14, 16–22, and 25–28 because Appellant has not argued the separate patentability of these claims. Appeal 2020-004484 Application 13/249,669 22 Non-statutory Obvious-type Double Patenting The Examiner rejected claims 1, 2, 4–11, 13, 14, 16–22, and 25–28 on the ground of non-statutory obviousness-type double patenting over claims 1–30 of Zankowski in view of Gizewski. Final Act. 2–6. Appellant does not challenge the Examiner’s double patenting rejection. See generally Appeal Br.; Reply Br. Therefore, the double patenting rejection is summarily sustained. CONCLUSION In summary: Appeal 2020-004484 Application 13/249,669 23 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4–11, 13, 14, 16–22, 25–28 101 Eligibility 1, 2, 4–11, 13, 14, 16–22, 25–28 1, 2, 4–11, 13, 14, 16–22, 27, 28 103(a) Krishnan, Robar, Bertram 1, 2, 4–11, 13, 14, 16–22, 27, 28 25, 26 103(a) Krishnan, Robar, Bertram, Frohlich 25, 26 1, 2, 4–11, 13, 14, 16–22, 25–28 Obviousness-type Double Patenting 1, 2, 4–11, 13, 14, 16– 22, 25–28 Overall Outcome 1, 2, 4–11, 13, 14, 16–22, 25–28 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). AFFIRMED Copy with citationCopy as parenthetical citation