David King et al.

Patent Trials and Appeals Board

Oct 28, 2020

2020002685 (P.T.A.B. Oct. 28, 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.
13/138,622 02/02/2012 David H. King 4839-0001US
(KP45995US-M)
7497
78855 7590 10/28/2020
Patent Capital Group
Attn: Rosemary Bell
30 Flower Lane
Levittown, PA 19055
EXAMINER
COOK, CHRISTOPHER L
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
10/28/2020 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):
PAIR_78855@patcapgroup.com
eofficeaction@appcoll.com
roe@patcapgroup.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID H. KING and MOHAMMED AL-QAISI

Appeal 2020-002685
Application 13/138,622
Technology Center 3700
____________

Before MICHAEL C. ASTORINO, JAMES A. WORTH, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

SCHOPFER, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4, 5, 9–13, 15, 16, 19, 20, 24, 28–32,
34, 36–38, and 41–49. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Bluedop
Medical Ltd. Appeal Br. 1.
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BACKGROUND
The Specification discloses “a system and method for estimating
haemodynamic data, in particular although not exclusively to non-invasively
obtaining in vivo mean pressure, mean pressure drop and/or hydraulic
resistance data from within the normal and diseased segments of, in
particular, the intact mammalian vascular system, human or animal.”
Spec. ¶ 1.
CLAIMS
Claims 1, 34, 46, and 49 are the independent claims on appeal.
Claim 1 is illustrative of the appealed claims and recites:
1. A system, including:
a non-invasive blood flow measurement device;
a display device; and
a processing device, in communication with the non-
invasive blood flow measurement device and with the display
device, configured to:
receive blood flow data, generated by the blood
flow measurement device, wherein the blood flow data
includes a velocity waveform of blood flow at a location
in a segment of a vascular system of a mammal, or the
blood flow data includes a flow rate waveform of blood
flow at the location in the segment of the vascular system
of the mammal;
receive a central mean pressure of the mammal;
determine a first measure of a shape of the blood
flow data and store the first measure in a storage device in
association with the corresponding location, wherein the
first measure represents a ratio between (1) a difference
between a maximum magnitude of the blood flow data and
a minimum magnitude of the blood flow data and (2) an
average magnitude of the blood flow data;
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generate a local pressure estimate by division of the
central mean pressure by a sum of (1) unity and (2) a ratio
of a second measure to the first measure, wherein the
second measure represents a ratio between (1) a difference
between a maximum magnitude of a central pressure
waveform and a minimum magnitude of the central
pressure waveform and (2) the central mean pressure; and
cause the display device to display a visual
representation of the local pressure estimate.
Appeal Br., Claims App. 1.
REJECTION
The Examiner rejects claims 1, 4, 5, 9–13, 15, 16, 19, 20, 24, 28–32,
34, 36–38, and 41–49 under 35 U.S.C. § 101 as directed to an abstract idea
without significantly more.
DISCUSSION
PRINCIPLES OF LAW
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. 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.
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at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 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 waterproof 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; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the 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. (citation omitted)
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(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
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
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).2 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.

2 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
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).
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Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).3
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
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 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.

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. See 2019 Revised Guidance - Section III(A)(2),
84 Fed. Reg. at 54–55.
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ANALYSIS
Step 2A, Prong One
Per the 2019 Revised Guidance, we begin our Alice-step-one analysis
by determining whether independent claim 1 “recites” an abstract idea under
Prong One of Step 2A. (2019 Revised Guidance, 84 Fed. Reg. at 54.) The
Guidance “extracts and synthesizes key concepts identified by the courts as
abstract ideas,” and these concepts include “[m]athematical concepts,” and,
more particularly, “mathematical relationships, mathematical formulas or
equations, [and] mathematical calculations.” (Id. at 52.)
With respect to each of the independent claims, the Examiner finds:
The claim(s) recite(s) a mathematical relationship/formula
/equations of determining a first measure of a shape of blood
flow data (e.g. ratio between 1) a difference between maximum
magnitude of the blood flow data and a minimum magnitude of
the blood flow data and 2) an average magnitude of the blood
flow data) and generating a local pressure estimate by division
of a central mean pressure by a sum of 1) unity and 2) a radio of
a second measure to the first measure, wherein the second
measure represents a ratio between 1) a difference between
maximum magnitude of a central pressure waveform and a
minimum magnitude of the central pressure wave form and 2)
the central mean pressure.
Non-Final Act. 4. The Examiner determines that these limitations “fall
within the ‘mathematical relationships, formulas or equations’ grouping of
abstract ideas performed by generic computer components as set forth in
the” Revised Guidance. Id. We agree with the Examiner at least to the
extent claim 1 requires that the device determines a mathematical
relationship in the form of “a ratio between (1) a difference between a
maximum magnitude of the blood flow data and a minimum magnitude of
the blood flow data and (2) an average magnitude of the blood flow data.”
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Such a mathematical relationship is one of the categories of abstract ideas
set forth in the Revised Guidance, as discussed above. Thus, claim 1, for
example, recites an abstract idea.
Step 2A, Prong Two
We next must determine “whether the claim as a whole integrates the
recited judicial exception into a practical application of the exception.”
Revised Guidance, 84 Fed. Reg. at 54.
With respect to claim 1, the Examiner finds that, beyond the abstract
ideas recited in the claim, “[t]he claim does not recite any additional
elements that integrate the judicial exception into a practical application,”
and that “[t]he only additional elements . . . are the non-invasive blood flow
measurement device and the display device which merely add insignificant
extra-solution activity to the judicial exception.” Non-Final Act. 4. The
Examiner finds that these additional elements are akin to “merely recit[ing]
limitations that amount to applying the judicial exception to a computer,
merely using a computer as a tool to perform the abstract idea and elements
which add insignificant extra-solution activity to the judicial exception.”
Ans. 5.
Under the Revised Guidance, we must evaluate the claim as a whole
in order to determine if “the judicial exception is meaningfully limited by
integration into a practical application of the exception.” Revised Guidance
84 Fed. Reg. at 55.
As discussed below, we agree with Appellant that when the claim is
considered as a whole and in light of the written description, the claims
focus on an improvement to technology and/or a technical field. Thus, we
agree with Appellant that the claim integrates the exception into a practical
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application such that the claims is not “directed to” the abstract idea
discussed above.
With respect to claim 1, we agree with the Examiner that additional
elements in the claim include a blood flow measurement device and a
display. The claim also recites a “processing device” in which
measurements are received from the measurement device, and a local
pressure estimate is ultimately generated for display on the display device.
The Specification discloses that the invention relates to a non-invasive
procedure for obtaining in vivo pressure in a mammalian vascular system.
Spec. ¶ 1. The Specification describes that haemodynamic information is
obtained in order to “gauge the clinical significance of individual lesions” in
the vasculature of a patient. Id. ¶¶ 3, 4. “The ability to establish the
magnitude of stenoses by measuring peak velocity within the stenosis has
proved to be valuable clinically.” Id. ¶ 6. Such a measurement is not
applicable in certain situations, and in these situations, the ability to measure
“downstream blood pressure and pressure drop across a lesion have been
shown to be sensitive indicators of stenotic disease.” Id. ¶¶ 6, 7. Thus,
[i]t would be desirable to derive a direct measure of disease
magnitude, one which is resistance based, computed from local
blood flow and pressure data. The hydraulic resistance of a
lesion is relatively independent of the state of the vascular load,
be it vasoconstricted or vasodilated, and is able give a precise
estimate of disease magnitude. Prior to the present invention, the
non[-]invasive computation of ‘in vivo’ absolute mean arterial
pressure and/or absolute hydraulic resistance of a lesion or a
series of lesions, has not been practical except in the case of
single isolated lesions under ideal conditions.
Id. ¶ 8. The Specification discloses embodiments that:
provide a system and method for deriving information or data on
a lesion based on a form factor of wave forms derived non-
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invasively using measured physiological data such as blood
velocity or flow rates and pressure supplying a specific vascular
bed, that is the vascular vessels and tissues of an organ or
muscle[], under examination.
Id. ¶ 10. The Specification discloses that the measurements obtained by the
system can be used “to derive haemodynamic data indicative of the presence
or absence of a lesion, and/or indicative of a response of a healthy vascular
system to stimuli such as drug infusion.” Id. ¶ 12. Further, the Specification
discloses:
By measuring or estimating incident blood pressure and local
blood flow rate noninvasively at selected points in the vascular
bed, the magnitude of the increased haemodynamic resistances
due to a lesion can be calculated and mapped and changes in
resistances and other measures can be used to pinpoint the
location of a stenosis.
Id. ¶ 11.
Based on the foregoing evidence, we agree with Appellant that the
Specification makes clear that “the present application represent[s] an
improvement in physiological monitoring technology” by providing “a non-
invasive physiological monitor that may be used by a clinician to identify a
lesion or series of lesions in a patient well before such lesions may be
detect[ed] using conventional, invasive approaches.” Appeal Br. 9–10. We
also agree that, for example, claim 1 reflects the improvement disclosed in
the written description by providing a device that generates and displays
local pressure estimates that may be used to pinpoint the location of a lesion.
Id. at 10. When considering the additional elements in combination with the
mathematical relationships recited, we determine that the additional
elements reflect an improvement to the technical fields of physiological
monitoring technology, and more specifically, to the diagnosis of stenosis in
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a patient. Thus, we determine that the claim as a whole integrates the
judicial exception, i.e., the abstract idea, into a practical application that
ensures “the claim is more than a drafting effort designed to monopolize the
judicial exception.” Revised Guidance, 84 Fed. Reg. at 55.
Accordingly, we determine that claim 1 is not directed to the
identified abstract idea under Step 2A of the Revised Guidance. We reach
the same conclusion with respect to each of the other independent claims,
which provide similar limitations for generating and displaying a local
pressure estimate in the vasculature of a patient. As such, there is no need to
perform Step 2B of the 2019 § 101 Guidance (and/or Alice step two), and
“this concludes the eligibility analysis.” (2019 § 101 Guidance, Federal
Register Vol. 84, No. 4, at 54.) Based on the foregoing, we do not sustain
the rejection of the claims on appeal.

CONCLUSION
We REVERSE the rejection of the claims under 35 U.S.C. § 101.
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 4, 5, 9–13,
15, 16, 19,
20, 24, 28–
32, 34, 36–
38, 41–49
101 Eligibility 1, 4, 5, 9–
13, 15, 16,
19, 20, 24,
28–32, 34,
36–38, 41–
49

REVERSED