Scott Guelich et al.

Patent Trials and Appeals Board

Sep 5, 2019

14101914 - (D) (P.T.A.B. Sep. 5, 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.
14/101,914 12/10/2013 Scott Guelich 405587-501001US 7886
133139 7590 09/05/2019
Adler Pollock & Sheehan P.C.
One Citizens Plaza
8th floor
Providence, RI 02903
EXAMINER
TOMASZEWSKI, MICHAEL
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
09/05/2019 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):
APS.IPSS@cpaglobal.com
IPDocketing@apslaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte SCOTT GUELICH, ANDREW SHEARER
AND DAVID HUANG1
___________

Appeal 2018-004077
Application 14/101,914
Technology Center 3600

____________

Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR. and
JEFFREY S. SMITH, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1–29 under
35 U.S.C. § 134(a). Appeal Brief 4. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
Introduction
According to Appellants, “The present patent document relates
generally to communications systems, and more particularly to a

1 Appellants identify Care Thread, Inc. as the real party in interest. Appeal
Brief 2.
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communication system optimized for data access and workflow management
in a healthcare facility.” Specification ¶3.

Representative Claims
1. A computing device, comprising: a data store comprising executable
software; a processor in data communication with the data store, the
processor configured to execute the software and cause the computing
device to:
map providers in a directory of providers and clients associated with
the providers to patients in a patient census system having data related to
patients and patient events;
record patient events in the patient census system; and
automatically push the patient events to the clients of the providers
mapped to the respective patient in real-time.

15. A system for facilitating communication within a healthcare
environment, the healthcare environment having:
a directory of providers and clients associated with the providers; and
a patient census system having patients and patient events,
the system comprising:
a specialized database server configured and arranged to
receive and store patients and patient events from the patient
census system and providers from the directory, the providers
automatically mapped to patients based on predetermined
criteria; and
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and a specialized application server configured and
arranged to push patient events to providers mapped to the
patients in real-time;
wherein the database server and application server are
implemented in a networked computer environment
communicatingly connected to the directory and the patient
census system, the networked computer environment
comprising a computer having a processor, a memory and a
storage.

Rejections on Appeal
Claims 1–29 stand rejected under 35 U.S.C. §101 because the claimed
invention is directed to patent ineligible subject matter. Non-final Action 2–
4.
Claims 1–10 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager (US Patent Application Publication 2005/0075904
A1; published April 7, 2005), Linthicum (US Patent Application Publication
2010/0131482 A1; published May 27, 2010) and Whittenburg (US Patent
Application Publication 2012/0059669 A1; published March 8, 2012). Non-
final Action 4–9.
Claims 11 and 12 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager, Linthicum, Whittenburg and Kaufman (US Patent
Application Publication 2006/0063563 A1; published March 23, 2006).
Non-final Action 9–10.
Claims 13 and 14 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager, Linthicum, Whittenburg and Khawand (US Patent
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Application Publication 2010/0069043 A1; published March 18, 2010).
Non-final Action 10–11.
Claims 15–24 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager and Linthicum. Non-final Action 11–15.
Claims 25 and 26 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager, Linthicum and Kaufman. Non-final Action 15–
16.
Claims 27–29 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Wager, Linthicum and Khawand. Non-final Action 16–
17.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed December 28, 2017), the Reply Brief
(filed March 7, 2018), the Non-final Action (mailed April 3, 2017) and the
Answer (mailed February 16, 2018), for the respective details.

35 U.S.C. §101 rejection
The Examiner determines, “[C]laims 1–29, individually, as a whole
and in combination with one another, are directed to an abstract idea because
an abstract idea is recited in the claims.” Non-final Action 2; see Alice
Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (describing the
two-step framework “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.”).
After the mailing of the Answer and the filing of the Briefs in this
case, the USPTO published revised guidance on the application of § 101.
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2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(January 7, 2019) (hereinafter “Memorandum”). Under the Memorandum,
the Office first looks to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., (a) mathematical concepts, (b) certain
methods of organizing human activity such as a fundamental
economic principles and practice, commercial or legal
interactions, managing personal behavior, relationships,
interpersonal interactions, (c) mental processes; and

(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. 2018).
Only if a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, does the Office then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is 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.
See Memorandum.
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise specified, we adopt the Examiner’s findings and conclusions as
our own and we add the following primarily for emphasis and clarification
with respect to the Memorandum.

Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the Revised Guidance
Step 2A, Prong One
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Appellants argue that claim 15 is representative of a group that is not
directed to an abstract idea. Appeal Brief 13 (citing DDR Holdings, LLC v.
Hotels.com, 773 F.3d 1245, 1259 (F. Cir. 2014).
Appellants’ arguments are not persuasive. Instead, we agree with the
Examiner’s determination that the claims recite an abstract idea. Non-final
Action 2–4.
The Specification discloses:
The system maintains a dynamic, real time list of health care
team personnel associated with a particular patient (accessible
via desktop or mobile). Members of the care team can be
contacted directly and more efficiently because their identity and
association with the patient is known immediately through the
system’s communication system. Moreover, if the care team
member who is the target of communication has an enabled
mobile device, this person can be contacted immediately.

The system maintains a collection of structured or unstructured
notes associated with the patient that can be created, modified
and/or viewed by multiple members of the team taking care of a
patient. In addition to the associated patient, each note may
include metadata such as a priority level, time/date created,
time/date completed, name of creator, and/or assignee(s) and/or
completer as well as other data. A patient may be associated with
multiple notes.
Specification ¶ ¶14, 15.
Claim 15 recites a “system for facilitating communication within a
healthcare environment” wherein:
1. “the providers automatically mapped to patients based on
predetermined criteria”
2. “a specialized application server configured and arranged to push
patient events to providers mapped to the patients in real-time.”

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The claim recites the abstract idea of organizing human activity, e.g.,
– managing personal behavior and managing interactions between people, as
well as, the abstract idea of employing mental processes — concepts
performed in the human mind including observance and evaluation. See
Memorandum, Section I (Groupings of Abstract Ideas); see also Non-final
Action 3; see also Specification ¶ 15 (“The system maintains a collection of
structured or unstructured notes associated with the patient that can be
created, modified and/or viewed by multiple members of the team taking
care of a patient.”).
Therefore, we conclude the claims recite an abstract idea pursuant to
Step 2A, Prong One of the guidance. See Memorandum, Section III(A)(1)
(Prong One: Evaluate Whether the Claim Recites a Judicial Exception).

Step 2A, Prong Two
Under Prong Two of the Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception
into a practical application of the exception” it is noted that a “claim that
integrates a judicial exception into a practical application will apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” Memorandum, Section
III(A)(2).
Appellants argue, “[T]he description of the invention and the claim
create a technological solution to the problems that had existed with
conventional communication methods. As such, the patent claim
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is directed to a specific improvement to computer functionality and not
directed to an ineligible abstract idea. (See Speedtrack Inc. v. Amazon.com,
Inc. (N.D. Cal. 2017)).” Appeal Brief 14. Appellants further argue that the
claim 15 does not merely utilize general computers to perform abstract
ideas, “the system of claim 15 attempts to improve communication within a
healthcare environment. Therefore, an inventive concept sufficiently
transforms the nature of claim 15 into a patent-eligible invention. (See
Broadcom Corp. Vs Sony Corp).” Appeal Brief 14.
We do not find Appellants’ arguments persuasive. The recited
limitations do not reflect an improvement in the functioning of a computer
or other technology or technical field. See Memorandum, 84 Fed. Reg. at
55; cf. Trading Techs. Int’l, Inc. v. IBG LLC, No. 2017-2257, 2019 WL
1716242, at *3 (Fed. Cir. Apr. 18, 2019) (“This invention makes the trader
faster and more efficient, not the computer. This is not a technical solution
to a technical problem.”). Further, as the Federal Circuit has explained, a
“claim for a new abstract idea is still an abstract idea.” Synopsis, Inc. v.
Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016). Even
assuming the technique claimed was “[g]roundbreaking, innovative, or even
brilliant,” that would not be enough for the claimed abstract idea to be patent
eligible. See Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569
U.S. 576, 591 (2013).
Further, we do not find Appellants’ arguments persuasive because the
claims utilize general purpose hardware as a tool to communicate with a
patient about collected personal and medical information. See Specification
¶33 (“It is envisioned that the system 10 may be implemented using any
software, written in any programming language for any operating system, on
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any computer hardware as necessitated by the processing demands placed on
the system.”); see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335–
36 (Fed. Cir. 2016) (“[W]e find it relevant to ask whether the claims are
directed to an improvement to computer functionality versus being directed
to an abstract idea . . . the focus of the claims is on the specific asserted
improvement in computer capabilities (i.e., the self-referential table for a
computer database) or, instead, on a process that qualifies as an ‘abstract
idea’ for which computers are invoked merely as a tool.”).
We acknowledge that some of the considerations at Step 2A, Prong 2,
properly may be evaluated under Step 2 of Alice (Step 2B of the Office
guidance). For purposes of maintaining consistent treatment within the
Office, we evaluate them under Step 1 of Alice (Step 2A of the Office
guidance). See Revised Guidance, 84 Fed. Reg. at 55 n.25, 27–32.
Appellants contend:
Moreover, it is the provision of a specialized database
server configured and arranged to receive and store patients and
patient events from the patient census system and providers from
the directory, the providers automatically mapped to patients
based on predetermined criteria and a specialized application
server configured and arranged to push patient events to
providers mapped to the patients in real-time to solve the
problem of communication within a healthcare environment that
amounts to significantly more than a patent on the idea of general
communication itself (See Motio, Inc. V. ESP Software LLC).
Appeal Brief 14.
In McRO, the Federal Circuit concluded, “By incorporating the
specific features of the rules as claim limitations, claim 1 is limited to a
specific process for automatically animating characters using particular
information and techniques” and “When looked at as a whole, claim 1 is
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directed to a patentable, technological improvement over the existing,
manual 3–D animation techniques.” McRO, Inc. v. Bandai Namco Games
Am. 837 F.3d 1299, 1316 (2016).
In FairWarning, the Federal Circuit recognized that, “The claims in
McRO were not directed to an abstract idea, but instead were directed to “a
specific asserted improvement in computer animation, i.e., the automatic use
of rules of a particular type.” FairWarning IP, LLC v Iatric Sys., Inc, 839
F.3d 1089, 1094 (2016) (citations omitted). The Federal Circuit
differentiated the claims at issue from McRO, “The claims here are more like
those in Alice than McRO. FairWarning’s claims merely implement an old
practice in a new environment” and “Although FairWarning’s claims require
the use of a computer, it is this incorporation of a computer, not the claimed
rule, that purportedly ‘improve[s] [the] existing technological process’ by
allowing the automation of further tasks.” FairWarning, 839 F.3d at 1094
(citations omitted).
We find the claims in the instant application are also more like those
in Alice than McRO because the claims merely utilizes well known elements
(e.g. servers and networking) to facilitate communication within a healthcare
environment and therefore does not provide significantly more than the
recited judicial exception. See Non-final Rejection 3.
Subsequently, we detect no additional element (or combination of
elements) recited in Appellants’ representative claim 15 that integrates the
judicial exception into a practical application. See Memorandum, Section
III(A)(2). For example, Appellants’ claimed additional elements (e.g.,
database and application servers, as well as, networked computers) do not:
(1) improve the functioning of a computer or other technology; (2) are not
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applied with any particular machine (except for a generic computer); (3) do
not effect a transformation of a particular article to a different state; and (4)
are not applied in any meaningful way beyond generally linking the use of
the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception. See MPEP §§ 2106.05(a)–(c), (e)–(h).
Accordingly, we determine the claim does not integrate the recited
judicial exception into a practical application. See Memorandum, Section
III(A)(2) (Prong Two: If the Claim Recites a Judicial Exception, Evaluate
Whether the Judicial Exception Is Integrated Into a Practical Application).
Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the Revised Guidance
Step 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo,
566 U.S. at 72–73).
In the Reply Brief, Appellants argue, “that the examiner has failed to
consider the claims in their entireties” and cites to a quote by Judge Moore
from the Berkheimer decision. Reply Brief 2. We do not find Appellants’
argument persuasive because the argument does not indicate where the
Examiner erred. See 37 C.F.R. § 41.37(c)(1)(iv).
Accordingly, we find the claims do not include a specific limitation or
a combination of elements that amounts to significantly more than the
judicial exception itself. See Memorandum, Section III(B) (Step 2B: If the
Claim Is Directed to a Judicial Exception, Evaluate Whether the Claim
Provides an Inventive Concept); see also Aatrix Software, Inc. v. Green
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Shades Software, Inc., 890 F.3d 1354, 1359 (Fed. Cir. 2018) (Moore, J.,
concurring) (“[T]he ‘inventive concept’ cannot be the abstract idea itself.”).
We sustain the Examiner’s patent ineligible subject matter rejection of
claims 1–29.

35 U.S.C. §103 rejection
Appellants contend, “Claim 1 is representative of this group and
recites, in part, ‘automatically push the patient events2 to the clients of the
providers mapped to the respective patient in real-time.’ Wager, Linthicum
and Whittenburg fail to teach or suggest at least this quoted claim feature,
whether taken alone or in combination.” Appeal Brief 15. We note it is
unlikely that a claimed invention’s mere automation would alone defeat a
rejection under 35 U.S.C. § 103 over any prior art teachings. See e.g., In re
Venner, 262 F.2d 91, 95 (1958) (“[I]t is well settled that it is not ‘invention’
to broadly provide a mechanical or automatic means to replace manual
activity which has accomplished the same result.”); see also Manual of
Patent Examining Procedure § 2144(IV); see also Answer 6.
Appellants assert, “As described in the specification, Appellant’s
claimed invention does not automate a manual activity - it is able to record
additional information that was traditionally lost or never recorded, and use
that to infer more efficient paths for providers to connect with each other,

2 “The ADT [Admission, Discharge, Transfer] system sends a stream of
events such as when a patient is admitted, discharged, transferred between
departments, and when they change rooms, to the system, which are stored
in the database server.” Specification ¶41.
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helping avoid miscommunication and stalled workflows.” Appeal Brief 17.
We do not find Appellants’ arguments persuasive because Appellants fail to
cite any portion of the Specification that supports Appellants’ assertion.
Further, Appellants’ arguments are not commensurate with the scope of
claim 1.
Wager discloses, “A system and related techniques automatically
generate optimized, best-match or sufficient assignments of care
providers, such as physicians, nurses or technicians, to a patient based on
clinical evidence, documentation, workload, infectious status and other
factors” wherein “the patient's chart or other clinical record may be accessed
by a rules-based engine configured with rules which relate a patient’s
clinical status and needs to the qualifications, certifications, capabilities and
skills of care providers and select the care provider best qualified to service
that patient’s clinical requirements.” Wager, Abstract; see Non-final
Rejection 5. Linthicum discloses, “Healthcare information systems are most
effective when users are able to find and make use of relevant information
across a timeline of patient care” wherein “Semantic models enable
applications to find, organize and present information to users more
effectively based on contextual information about the user and task.”
Linthicum ¶ 30. We agree with the Examiner’s determination that it would
have been have obvious to one of ordinary skill in the art “to include the
adaptive user interface systems and methods, as taught by Linthicum, with
the system and method for assignment of care providers to patients, as taught
by Wager, with the motivation of finding and organizing a patient’s relevant
clinical data from a plurality of sources and effectively presenting the
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information to the patient's care provider.” Non-final Rejection 6 (citing
Linthicum ¶¶ 5-7).
The Examiner finds that neither Wager nor Linthicum appear to
explicitly teach “recording patients events in the patient census system” as
recited in claim 1. Non-final Rejection 6. Although the Examiner cites
Wittenburg to address the recording patient events limitation, it is evident
that both Wager and Linthicum maintain patient’s records. See Wager,
Abstract; see also Linthicum, Abstract. Therefore, we sustain the
Examiner’s obviousness rejection of independent claim 1, as well as,
dependent claims 2–10 not argued separately. See Appeal Brief 17. We also
summarily sustain the Examiner’s obviousness rejections of claims 11–29
not argued by Appellants. See 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
The Examiner’s patent ineligible subject matter rejection of claims 1–
29 is affirmed.
The Examiner’s obviousness rejections of claims 1–29 are affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED