Ophir Frieder et al.

Patent Trials and Appeals Board

Nov 20, 2020

2020003362 (P.T.A.B. Nov. 20, 2020)

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.
13/543,044 07/06/2012 Ophir Frieder 8031-94723-01 1329
24197 7590 11/20/2020
KLARQUIST SPARKMAN, LLP
121 SW SALMON STREET
SUITE 1600
PORTLAND, OR 97204
EXAMINER
LAM, ELIZA ANNE
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
11/20/2020 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):
docketing@klarquist.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte OPHIR FRIEDER
and HOWARD FEDEROFF
__________________

Appeal 2020-003362
Application 13/543,044
Technology Center 3600
____________________

Before JAMES P. CALVE, KENNETH G. SCHOPFER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 1–7, 9–18, 20, and 22–27, which are all of
the pending claims.2 Appeal Br. 1. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM and enter a New Ground of Rejection.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies Georgetown University as the real party in interest. Appeal Br. 2.
2 Claims 8, 19, 21 are cancelled. Appeal Br. 27, 33, 34 (Claims App.).
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CLAIMED SUBJECT MATTER
Claims 1, 9, 17, 18, 20, 22, 23, 25, and 27 are independent. Claim 1
recites:
1. A method for improving the accuracy of
pharmacovigilance, comprising tracking drug or medical device
treatment responses of a plurality of patients associated with a
post-marketing surveillance trial of the drug or medical device
treatment, comprising:
publishing an informational item about the drug or
medical device treatment in the post-marketing surveillance
trial to a plurality of social media platforms unaffiliated with
the post-marketing surveillance trial of the drug or medical
device treatment, wherein publishing includes uploading the
informational item to a plurality of social media servers, and
wherein the informational item includes identification of the
drug or medical device treatment, names of diseases treatable
by the drug or medical device treatment and a URL link to a
patient registration page;
maintaining a log of the plurality of social media
platforms that the informational item has been published;
inducing the plurality of patients to post trial related
responses on the plurality of social media platforms by offering
a monetary incentive to the plurality of patients, wherein the
monetary incentive is provided by a sponsor of the post-
marketing surveillance trial, and further wherein the trial related
responses include comments posted at the plurality of social
media platforms;
receiving registration information from the plurality of
patients;
storing registration information of the plurality of
patients in a storage device;
collecting, from the trial related responses, comments
that include the name of the drug; or medical device;
aggregating the trial related responses from the plurality
of social media platforms;
integrating posts from an individual patient of the
plurality of patients across two or more social media platforms;
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wherein integrating comprises combining similar comments
posted by a same patient of the plurality of patients from two or
more social media platforms;
analyzing the comments that include the name of the
drug or medical device in real time to obtain knowledge
comprising a safety concern related to the post-marketing
surveillance trial including at least one of co-morbid conditions,
duration of medical condition, and social variables; and
modifying the drug or medical device treatment of the
post-marketing surveillance trial in response to the safety
concern.
Appeal Br. 25–26 (Claims App.).
REJECTIONS
Claims 1–7, 9–18, 20, and 22 are rejected under 35 U.S.C. § 112, first
paragraph, for failing to comply with the written description requirement.
Claims 1, 4, 6, 7, 9, 12, and 14–17 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wicks (“Accelerated clinical discovery using
self-reported patient data collected online and a patient-matching algorithm,”
Nature Biotechnology, 29:5, May 2011, 411–14), Paty (US 8,380,531 B2,
iss. Feb. 19, 2013), Frankham (US 2012/0072232 A1, pub. Mar. 22, 2012),
Official Notice, Abraham-Fuchs (US 2005/0182664 A1, pub. Aug. 18,
2005), and Stoltenberg (US 2003/0126156 A1, pub. July 3, 2003).
Claims 2, 10, and 18–22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wicks, Paty, Frankham, Official Notice, Wang (US
2008/0256444 A1, pub. Oct. 16, 2008), Abraham-Fuchs, Stoltenberg, and
McAlindon (US 7,251,609 A1, iss. July 31, 2007).
Claims 3, 11, 23, 25, and 27 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wicks, Paty, Frankham, Official Notice, Abraham-Fuchs,
Stoltenberg, and Doganaksoy (US 2009/0083132 A1, pub. Mar. 26, 2009).
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Claims 24 and 26 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Wicks, Paty, Frankham, Official Notice, Abraham-Fuchs,
Stoltenberg, Doganaksoy, and McAlindon.
ANALYSIS
Claims 1–7, 9–18, 20, and 22
Rejected for Lack of Written Description
The Examiner determines the following limitations in independent
claims 1, 9, 17, 18, 20, and 22 lack a written description: (1) “modifying the
drug or medical device treatment of the post-marketing surveillance trial;”
(2) “offering a monetary incentive;” and (3) “social medial platforms
unaffiliated with the post marketing surveillance trial.” Final Act. 2.
“modifying the drug or medical device treatment”
Appellant asserts the Specification describes embodiments that allow
“pharmaceutical companies and relevant agencies to quickly collect and
analyze large amounts of data to determine whether or not an approved drug
may have safety or tolerability concerns that need to be addressed.” Appeal
Br. 7 (citing Spec. ¶ 140). Appellant argues that this description supports
“modifying the drug or medical device treatment of the post-marketing
surveillance trial in response to the safety concern” as claimed. Id.
The Examiner responds, “paragraph [140] does not discuss medical
devices.” Ans. 5. The Examiner also finds that paragraph 140 describes
addressing safety and tolerability concerns by stating it “permits companies
to more quickly determine whether or not label changes, product recalls, or
additional clinical trials may be appropriate,” but label changes, product
recalls, and additional clinical trials do not describe modifying a drug or
medical device treatment as claimed. Id.
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The Patent Laws state that “[t]he specification shall contain a written
description of the invention.” 35 U.S.C. § 112, paragraph 1. The written
description requirement examines “whether the disclosure of the application
relied upon reasonably conveys to those skilled in the art that the inventor
had possession of the claimed subject matter as of the filing date.” Ariad
Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en
banc). “[T]he test requires an objective inquiry into the four corners of the
specification from the perspective of a person of ordinary skill in the art.
Based on that inquiry, the specification must describe an invention
understandable to that skilled artisan and show that the inventor actually
invented the invention claimed.” Id. The specification does not have to
recite a claimed invention identically, but “a description that merely renders
the invention obvious does not satisfy the requirement.” Id. at 1352; see
also Centocor Ortho Biotech, Inc. v. Abbott Labs., 636 F.3d 1341, 1348
(Fed. Cir. 2011) (“A ‘mere wish or plan’ for obtaining the claimed invention
is not adequate written description.”). If no description can be found in the
Specification, the only thing the PTO reasonably can do is to point out its
nonexistence. Hyatt v. Dudas, 492 F.3d 1365, 1370 (Fed. Cir. 2007).
Paragraph 140 of the Specification discloses in pertinent part:
Embodiments as disclosed herein enable, among other things,
pharmaceutical companies and relevant agencies to quickly
collect and analyze large amounts of data to determine whether
or not an approved drug may have safety or tolerability
concerns that need to be addressed. Other exemplary
advantages include the ability to conduct pharmacovigilance on
a global scale, which provides early warning signals about, inter
alia, tolerability or safety issues, which permits companies to
more quickly determine whether or not label changes, product
recalls, or additional clinical trials may be appropriate.
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We agree with the Examiner that paragraph 140 does not describe a
modification being made to drug or medical device treatment in response to
safety or tolerability concerns. Nor has Appellant provided evidence that the
description of identifying safety or tolerability concerns to be addressed in
paragraph 140 reasonably conveys to a skilled artisan that the invention
includes “modifying the drug or medical device treatment of the post-
marketing surveillance trial in response to the safety concern” as claimed.
Paragraph 140 indicates that such early warning signals about safety
and tolerability issues permit companies to determine “whether or not label
changes, product recalls, or additional clinical trials may be appropriate.”
Spec. ¶ 140. We find no description of modifying drug or medical device
treatment in paragraph 140. Indeed, we find no description at all of medical
devices in paragraph 140. Nor is it sufficient that modifying treatment may
be obvious in view of what is described in paragraph 140. The written
description requirement demands more. Thus, we sustain the rejection of
claim 1 and claims 2–7, 9–18, 20, and 22, which are not argued separately
for lack of an adequate written description of this limitation.
“offering a monetary incentive”
Appellant asserts that paragraphs 104, 105, and 116 describe “offering
a monetary incentive” to induce patients to post trial related responses to the
social media platforms. Appeal Br. 7. These paragraphs state that sponsors
can entice and motivate patients to volunteer for a trial and provide needed
information by providing incentives such as preferred/quicker/higher priority
access to healthcare provider feedback, discounted prices on prescription
refills, updated information on disease and treatment, and support group
formation and hosting. Spec. ¶¶ 104, 105, 116.
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We agree with the Examiner that the Specification does not describe
“monetary incentives.” Ans. 5. We also agree that a “monetary incentive”
includes cash payments. Id. However, we consider “discounted prices on
prescription refills” to be a monetary incentive because they allow a person
to refill a prescription for less money. Thus, we do not sustain the rejection
of claims 1–7, 9–18, 20, and 22 on this basis.
Yet, Appellant’s argument that all of the incentives in paragraphs 104,
105, and 116 are monetary incentives (Appeal Br. 7) makes the meaning of
monetary incentive unclear. The Specification provides no definition or
guidance as to the meaning of monetary incentive. Thus, we determine
claims 1–7, 9–18, 20, and 22 are indefinite. We enter a new ground of
rejection on that basis. See In re Packard, 751 F.3d 1307, 1310, 1314 (Fed.
Cir. 2014) (approving indefiniteness standard in MPEP § 2173.05(e) that
“[a] claim is indefinite when it contains words or phrases whose meaning is
unclear.”); Ex parte McAward, 2017 WL 3669566, at *5 (PTAB Aug. 25,
2017) (precedential) (same); Interval Licensing LLC v. AOL, Inc., 766 F.3d
1364, 1374 (Fed. Cir. 2014) (“With this lone example, a skilled artisan is
still left to wonder what other forms of display are unobtrusive and non-
distracting. . . . The specification offers no indication, thus leaving the
skilled artisan to consult the ‘unpredictable vagaries of any one person’s
opinion.’” (citation omitted)); IQASR LLC v. Wendt Corp., 825 F. App’x
900, 905 n.5 (Fed. Cir. 2020) (“Without better guidance, an artisan must
speculate which choice of the alternative characteristics better describes any
of these terms in a given situation.”); Ex parte Miyazaki, 89 USPQ2d 1207,
1211 (BPAI 2008) (precedential) (holding a claim that is amenable to two or
more plausible constructions without clear metes or bounds is indefinite).
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“social media platforms unaffiliated with the . . . trial”
Appellant argues that support for “social media platforms unaffiliated
with the post-marketing surveillance trial” is in paragraphs 72, 97–99, and
103 of the Specification. Appeal Br. 6. Appellant argues that paragraph 99
describes how “the sponsor publishes an informational item on an ‘Industry
Page’ of a social media platform such as LinkedIn, Facebook, or Google+”
to support this feature. Id. at 6–7.
The Examiner finds the Specification does not use the terms affiliation
or unaffiliated. The Examiner defines “affiliate” as “to bring or receive into
close connection as a member or branch.” Ans. 4. The Examiner finds that
users and sponsors must join a social media site to post information on the
site, and this sort of connection is an affiliation. Id. at 4–5. The Examiner
notes that paragraph 98 of the Specification states that “the sponsor creates a
user identifier for each Phase IV drug for a social media platform, such as
LinkedIn.” Id. at 5. The Examiner cites paragraph 97, which describes how
patients befriend (Facebook) or follow (Twitter) drugs of interest on social
media sites, and finds that this sort of relationship is an affiliation that allows
patients to email, text, tweet, or post messages to the sponsor. Id. at 4–5.
We agree with the Examiner that the Specification describes sponsors
and patients registering with a social media platform in order to participate
in clinical trials on social media platforms. Such relationships constitute an
affiliation with the social media platform under a broadest reasonable
interpretation. Appellant has not cited any description or example of a social
media platform that has no affiliation or association with a clinical trial as
claimed. The Specification indicates the contrary situation occurs. Thus, we
sustain the rejection of claims 1–7, 9–18, 20, and 22 on this basis.
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We also enter a new ground of rejection of claims 1–7, 9–18, 20, and
22 under 35 U.S.C. § 112, paragraph two, because the meaning of “social
media platforms unaffiliated with the . . . trial” is unclear. The Specification
provides no objective guidance as to the meaning of this term. Instead, it
describes how trials and participants associate with social media platforms,
and Appellant argues that such associations are not affiliations.
Claims 1, 4, 6, 7, 9, 12, and 14–17
Rejected Over Wicks, Paty, Frankham, Official Notice,
Abraham-Fuchs, and Stoltenberg
Appellant argues the claims as a group. Appeal Br. 9–14. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(1)(iv). Claims 4, 6, 7, 9,
12, and 14–17 stand or fall with claim 1.
Appellant raises a number of arguments that we find unpersuasive at
least because they attack the references individually rather than as applied by
the Examiner. For example, Appellant argues that Wicks and Frankham do
not teach or suggest “inducing the plurality of patients to post trial related
responses on the plurality of social media platforms by offering a monetary
incentive to the plurality of patients” as recited in claim 1. Appeal Br. 9–10.
These arguments are not persuasive because the Examiner relies on
Abraham-Fuchs to teach offering a monetary incentive to patients. See Final
Act. 5; Ans. 6. Furthermore, Frankham teaches the inducing of a plurality of
patients to post trial related responses on social media platforms but does use
“monetary incentives.” Final Act. 4–5; Ans. 6–7. Frankham teaches the use
of social networks and online communities to solicit patients to participate in
surveys and to post discussions for drug assessments and clinical trial studies
such as Phase IV studies. Frankham ¶ 59. Users can communicate with one
another on topics of their interest or mutual interest in this way. Id. ¶ 69.
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Frankham also describes web interfaces that generate, initiate, and
distribute surveys to one or more leads or patients of an online community or
post surveys to a social network. Id. ¶ 99. Surveys may identify drugs, drug
dosage, length of treatment, side effects, quality of life, and other issues for
patients to provide their responses and input. Id. ¶ 100.
Because Frankham does not teach the use of “monetary incentives” to
induce patients to post responses, the Examiner relies on Abraham-Fuchs to
teach this features. Final Act. 5. Abraham-Fuchs teaches how to improve
incentives for patients to participate in clinical trials. Abraham-Fuchs ¶ 8.
Abraham-Fuchs teaches that sponsors can define the criteria for rewarding
participants. Id. ¶ 42. In particular, Abraham-Fuchs teaches the use of such
incentives as financial investments, shares, funds, gift coupons at stores, and
points that can be accumulated and cashed out to induce patients. Id. ¶ 44.
Appellant further argues that Wicks does not teach aggregating trial
related responses. Appeal Br. 10. This argument is not persuasive because
the Examiner relies on Frankham to teach this limitation and also to teach
publishing information about a study. Final Act. 4–5.
Appellant also asserts that Frankham’s collection of survey data does
not teach aggregating trial related responses from a plurality of social media
platforms as recited in claim 1. Appeal Br. 10. We agree with the Examiner
that aggregating trial related responses to surveys published on one or more
social media platforms corresponds to aggregating trial related responses as
claimed. Final Act. 5; Ans. 7. Claim 1 does not recite a particular format
for aggregating trial related responses. Nor does it preclude aggregation of
survey responses. Frankham also teaches online trial studies with managed
groups whose data is collected and analyzed as claimed. Frankham ¶ 65.
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Moreover, Frankham also indicates that social media platforms can
post landing pages where patients can identify themselves and provide the
same information about drugs, dosages, treatment length, and side effects as
in a survey. Id. ¶¶ 100–102. The results and data collected from these pages
and social media platforms can be collected like the survey data and stored
in a data engine for communication to participants and sponsors. Id.
Appellant’s argument that Wicks does not integrate posts of patients
across two or more social media platforms is not persuasive because the
Examiner cites Stoltenberg and Frankham for this feature. Appeal Br. 10–
11; Final Act. 6; Ans. 7–8. In this regard, Frankham aggregates responses of
patients over multiple social media platforms as discussed above. Frankham
uses web crawlers to collect data on specific topics and conversations such
as who is saying what, where, and when on any combination of one or more
networks, online communities, websites, web links (URLs), products, key
words, and medical conditions. Frankham ¶ 72. The social networks and
discussion platforms may include millions of discussions aggregated over a
time period of a day, week, or year with daily updates to the online sources
where patients discuss medical conditions related to studies. Id. ¶ 70. The
patient responses to surveys and online forums are aggregated in a database
for analysis of the use, compliance, and side effects of a particular drug and
design of other clinical studies. Id. ¶¶ 61–95. A data engine consolidates
multiple databases and data collections from plural web crawlers, surveys,
interviews, online discussions, and any other means for further processing,
organization, filtering, and data extraction relevant to a particular topic such
as a pharmaceutical drug. Id. ¶¶ 78, 79. Stoltenberg integrates duplicate
data records in databases. Stoltenberg ¶¶ 3, 11, 15.
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Appellant contends that Stoltenberg deduplicates hospital records
using a matching score, but such record deduplication does not teach or
suggest “integrating posts from an individual patient of the plurality of
patients across two or more social media platforms” as recited in claim 1
because merging or deleting duplicate records is fundamentally different
from integrating separate posts that are distinct but related because they are
posted by the same individual on the same general topic. Appeal Br. 11.
The Examiner responds that merging and deduplication are two ways
of integrating records based on scoring fields such as a patient’s name, sex,
social security number, date of birth, maiden name, and alias. Ans. 8. The
Examiner cites Frankham to teach aggregating posts from multiple social
media platforms and Stoltenberg to teach merging records using a matching
algorithm. Id. at 7–8.
Claim 1 recites “wherein integrating comprises combining similar
comments posted by a same patient of the plurality of patients from two or
more social media platforms.” Appeal Br. 26 (Claims App.). As discussed
above, Frankham aggregates posts across multiple social media platforms,
online communities, and websites by topic in an index. Frankham ¶ 72. The
Examiner merely relies on Stoltenberg to teach an exemplary technique and
algorithm that can be used to integrate patients’ posts by factors such as the
patient’s name and other personal identification information for each topic.
The Specification describes this limitation as “the integration module 506
may clean the reco[r]ded data by combining similar comments posted by the
same patient.” Spec. ¶ 129. Stoltenberg teaches that it is known in the art to
combine comments by the same patient and in combination with Frankham
would combine similar comments by the same patient for a particular topic.
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Appellant further asserts that Frankham does not teach or suggest that
publishing includes uploading the informational item to a plurality of social
media servers, and wherein the informational item includes identification of
drug or medical device treatment, names of diseases treatable by the drug,
and a URL link to a patient registration page as claimed. Appeal Br. 11–13.
We agree with the Examiner that Frankham teaches this limitation. In
this regard, Frankham uses a web interface to publish/distribute surveys to
one or more social networks and/or online communities via email, SMS, IM,
texting, twitter, or by posting or publishing a link or URL to the survey on a
discussion platform or social network. Frankham ¶ 99. A survey identifies
the drug, drug dosage, length of treatment, side effects and solicits patients’
consent, signature, and medical history, which constitutes a registration as
claimed. Id. ¶ 100. Social media platforms may offer a portal or URL to an
interface that allows a patient or user of an online community to register by
establishing an account with the platform, creating a profile for the survey.
Id. ¶ 120. The system may track the study by patient specific information,
patient input, dosage, treatment plans and durations. Id. ¶ 101; see Ans. 8.
We also agree with the Examiner that Frankham analyzes comments
to include the name of the drug or medical device in real time to obtain
knowledge about a safety concern related to the trial as recited in claim 1. In
this regard, Frankham collects and analyzes data regarding drug dosage,
length of treatment, side effects, quality of life, and other social variables as
claimed. Frankham ¶¶ 50, 100, 101; Ans. 9. Claim 1 indicates that safety
concerns include the duration of a medical condition and social variables.
Appellant further argues there is no reasonable expectation of success
in combining Wicks and Paty with the other references. Appeal Br. 20–21.
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“The reasonable expectation of success requirement refers to the
likelihood of success in combining references to meet the limitations of the
claimed invention.” Intelligent Bio-Sys., Inc. v. Illumina Cambridge Ltd.,
821 F.3d 1359, 1367 (Fed. Cir. 2016). Here, the Examiner finds that Wicks
teaches how to publish information about drug or medical device treatment,
induce patients to respond, and aggregate and analyze patient responses but
does not track responses of plural patients in a clinical treatment as claimed.
Final Act. 3. The Examiner relies on Paty to teach how to track responses of
plural patients in a clinical trial of a medical treatment. Id. A skilled artisan
would have a reasonable expectation of success in adapting Wicks’ method
based on Paty’s teachings. Furthermore, Frankham also provides extensive
teachings of these steps for a skilled artisan to follow as discussed above.
We also agree with the Examiner’s determination that a skilled artisan
would have been motivated to modify Wicks and Paty based on Frankham’s
teachings to publish information, collect, aggregate, and analyze trial related
responses to reach a larger group of people. Final Act. 5; KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) (using a known technique to improve
similar methods for similar results is obvious unless its application is beyond
the level of ordinary skill). Skilled artisans would combine these teachings
with a reasonable expectation of success based on Frankham’s teachings to
do so. Appellant’s argument is not persuasive. See In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from
common experience is just attorney argument and not the kind of factual
evidence that is required to rebut a prima facie case of obviousness.”).
Thus, we sustain the rejection of claim 1 and claims 4, 6, 7, 9, 12, and
14–17, which fall with claim 1.
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Claims 2, 10, and 18–22
Rejected Over Wicks, Paty, Frankham, Official Notice,
Wang, Abraham-Fuchs, Stoltenberg, and McAlindon
Appellant argues the claims as a group. Appeal Br. 14–15. We select
claim 18 as representative. Claims 2, 10, and 19–22 stand or fall with claim
18. Independent claim 18 recites a method that aggregates search queries of
a plurality of patients from at least one search engine by receiving a search
engine server log of search queries and associated IP addresses, integrating
the search queries from an individual patient across two or more search
engines, and analyzing the aggregated and integrated search queries. Appeal
Br. 32–33 (Claims App.).
The Examiner relies on Wicks, Paty, and Frankham to teach the steps
of aggregating, integrating, and analyzing responses as discussed above for
claim 1 and Wang to teach the application of such steps for search queries
by receiving from a search engine server a log of aggregated search queries
and analyzing the log of search queries to obtain knowledge. Final Act. 7.
Appellant argues that Wicks and Frankham do not teach or suggest
aggregating search queries as claimed. Appeal Br. 14–15. This argument is
not persuasive because it does not address the Examiner’s reliance on Wang
to teach aggregating search queries in combination with teachings of Wicks,
Paty, and Frankham as discussed above for the rejection of claim 1. Ans. 9.
Appellant argues that Wicks and Stoltenberg do not teach integrating
search queries from an individual patient across two or more search engines.
Appeal Br. 13–14. This argument is not persuasive because the Examiner
relies on the combined teachings of Frankham, Stoltenberg, and Wang for
this feature. Final Act. 7; Ans. 10. As discussed above Frankham and
Stoltenberg teach integration of patient posts across multiple platforms.
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Frankham also teaches the use of a web crawler as any type or form
of a search engine. Frankham ¶ 71. The web crawler may be configured to
collect and track specific topics and conversations by keywords, products,
drugs, medical device, user profiles, user traffic, and the like. Id. ¶¶ 59, 68,
72, 73. The web crawler also indexes data collected from sites by keyword.
Id. ¶ 109. The web crawler may store the collected text and metadata in a
database for organizing, filtering, extracting, and analysis of a topic by a
data engine or a topical analysis module. Id. ¶¶ 74–76, 78. The data can be
provided in different formats. Id. ¶ 79.
The Examiner cites Wang to teach that it is known in the art to receive
search results from Internet search logs of popular search queries undertaken
by search engines across the world and display the results by popular queries
and keywords. Wang, Abstract; id. ¶ 2. Frankham and Stoltenberg teach it
is known to aggregate and integrate data collected from individual posts of
patients for analysis of safety concerns as discussed above. Wang teaches
the use of similar techniques to analyze search queries that are aggregated in
an Internet search log. Ans. 10. The Examiner determines it would have
been obvious to analyze search logs as Wang teaches in Wicks, Paty, and
Frankham for similar results of gaining insights into a very large population
of users or patients. Final Act. 7. We agree. See KSR, 550 U.S. at 417.
A skilled artisan would have combined the teachings with reasonable
expectations of success based on Frankham’s teachings to use search engine
web crawlers and Wang’s teachings that it is known in the art to use search
engine logs to collect and analyze data for similar predictable results.
Thus, we sustain the rejection of claim 18 and claims 2, 10, and 19–
20, which fall with claim 18.
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Claims 3, 11, 23, 25, and 27
Rejected Over Wicks, Paty, Frankham, Official Notice,
Abraham-Fuchs, Stoltenberg, and Doganaksoy
Appellant argues the claims as a group. Appeal Br. 16–19. We select
claim 23 as representative, and claims 3, 11, 25, and 27 stand or fall with
claim 23.
Regarding claim 23, the Examiner relies on the same teachings of
Wicks, Paty, Frankham, Official Notice, Abraham-Fuchs, and Stoltenberg as
for claim 1. See Final Act. 8. Appellant argues that Frankham does not
induce a plurality of patients to post trial related responses by offering a
monetary incentive. Appeal Br. 17. This argument is not persuasive for the
reasons discussed for the rejection of claim 1, namely, the Examiner relies
on the combined teachings of the references particularly Frankham to teach
inducing patients to post trial related responses and Abraham-Fuchs to teach
the use of monetary incentives to induce patient responses. Final Act. 4–6.
Appellant’s arguments that Wicks and Frankham do not teach
aggregating download information from a plurality of file sharing websites
as recited in claim 23 is not persuasive in view of the Examiner’s reliance on
the teachings of Wicks, Frankham, and Doganaksoy. See Appeal Br. 17–18;
Final Act. 8. Frankham aggregates information collected from a plurality of
websites and social networking communities or sites as discussed above.
The Examiner relies on Doganaksoy’s similar teachings that it is known in
the art to do so for file sharing websites as claimed. Final Act. 8.
Appellant’s arguments that Wicks and Stoltenberg do not integrate
posts of a patient across two or more file sharing websites (Appeal Br. 18–
19) does not address the Examiner’s reliance on the combined teachings of
Wicks, Stoltenberg, Frankham, and Doganaksoy for file sharing websites.
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Appellant’s concerns about deduplication in Stoltenberg are addressed
by Frankham’s teachings of aggregating and integrating patient responses
from multiple online communities, websites, and social networks with the
teachings of Stoltenberg of a matching algorithm that can be used to do so
by patient name and personal identifier information. Doganaksoy collects
and integrates responses to information posted on file sharing websites by
collecting and analyzing logs of file sharing history for similar predictable
results. See Doganaksoy ¶¶ 14, 15, 56, 61, 135; Final Act. 8; Ans. 10.
Appellant’s arguments that Doganaksoy does not teach publishing an
information item to file sharing websites (Appeal Br. 19) is not persuasive
because the Examiner relies on the combined teachings of Wicks, Frankham,
and Doganaksoy. Final Act. 8; Ans. 10–11. As discussed above Frankham
provides detailed teachings of publishing information on a website or social
network or file sharing website, and Doganaksoy is relied on to teach a file
sharing website with a log of file sharing history for an information item and
analysis of that file sharing history to obtain knowledge. Ans. 10–11. Thus,
Appellant’s arguments impermissibly attack the references individually
when the Examiner has relied on their combined teachings, as set forth in the
Final Office Action and Answer, to render obvious this subject matter.
The Examiner merely proposes to use Doganaksoy’s technique of
analyzing a file sharing website server log of file sharing history for similar
benefits in the method of Wicks, Paty, Frankham, Stoltenberg, and the other
references for similar improvements and predictable results. Final Act. 8.
This reason is supported by rational underpinnings based on the teachings of
Doganaksoy of the known advantages of using a server log of file sharing
history to analyzing file sharing on a website. See KSR, 550 U.S. at 417.
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The expectation of success must be commensurate with the claim
scope as discussed above. Wicks, Paty, Frankham, Abraham-Fuchs, and
Stoltenberg teach the benefits of publishing information on websites, social
media networks, and online communities and then tracking, collecting, and
aggregating responses to that information as discussed above. Doganaksoy
teaches it is known to perform similar steps by publishing information items
on a file sharing website and receiving and analyzing a log of file sharing
history for the informational items for similar benefits of gaining knowledge.
Appellant’s arguments do not explain why the teachings of these underlying
references are not modifiable with Doganaksoy’s teachings for predictable
results of tracking file sharing as Doganaksoy teaches with the publishing,
aggregation, and integration teachings of the other references. See Final
Act. 8; Ans. 10–11; Geisler, 116 F.3d at 1470. The combination of such
known techniques for similar benefits that are within the level of ordinary
skill in the art is obvious and yields predictable results. KSR, 550 U.S. at
417; see Doganaksoy ¶¶ 47–56. Implicit motivation to combine exists for
improvements to make a process stronger, cheaper, faster, lighter, smaller,
more durable, and/or more efficient. See DyStar Textilfarben GmbH & Co.
Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1368 (Fed. Cir. 2006).
Accordingly, we sustain the rejection of claim 23 and claims 3, 11, 25,
and 27, which fall with claim 23.
Claims 24 and 26
Rejected Over Wicks, Paty, Frankham, Official Notice,
Abraham-Fuchs, Stoltenberg, Doganaksoy, and McAlindon
Appellant does not present argument for claims 24 and 26. Appeal
Br. 7–24. Thus, we summarily sustain this rejection.
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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed New
Ground
1–7, 9–
18, 20, 22
112, ¶ 1 Written
Description
1–7, 9–18,
20, 223
1–7, 9–18,
20, 224

1–7, 9–
18, 20, 22
112, ¶ 2 Indefiniteness 1–7, 9–18,
20, 225
1, 4, 6, 7,
9, 12, 14–
17
103(a) Wicks, Paty,
Frankham,
Official Notice,
Abraham-
Fuchs,
Stoltenberg
1, 4, 6, 7,
9, 12, 14–
17

2, 10, 18–
22
103(a) Wicks, Paty,
Frankham,
Official Notice,
Wang,
Abraham-
Fuchs,
Stoltenberg,
McAlindon
2, 10, 18–
22

3, 11, 23,
25, 27
103(a) Wicks, Paty,
Frankham,
Official Notice,
Abraham-
Fuchs,
Stoltenberg,
Doganaksoy
3, 11, 23,
25, 27

24, 26 103(a) Wicks, Paty,
Frankham,
Official Notice,
Abraham-
24, 26

3 Affirmed for “modifying” and “unaffiliated” limitations discussed above.
4 Reversed for “a monetary incentive” limitation discussed above.
5 For “unaffiliated” and “monetary incentive” limitations discussed above
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Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed New
Ground
Fuchs,
Stoltenberg,
Doganaksoy,
McAlindon
Overall
Outcome
1–7, 9–18,
20, 22–27
1–7, 9–18,
20, 22
This decision contains a new ground of rejection entered pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides that “[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.
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Further guidance on responding to a new ground of rejection can be
found in the MANUAL OF PATENT EXAMINING PROCEDURE § 1214.01 (9th
Ed., Rev. 08.2017, Jan. 2018).
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; 37 C.F.R. § 41.50(b)