Ex Parte Argenbright et al

Patent Trial and Appeal BoardOct 18, 2012

10240479 (P.T.A.B. Oct. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte KEITH E. ARGENBRIGHT, RONALD E. GALBRAITH, and AUDREY J. NUDD ____________________ Appeal 2011-005093 Application 10/240,479 Technology Center 3600 ____________________ Before ANTON W. FETTING, BIBHU R. MOHANTY, and NINA L. MEDLOCK, Administrative Patent Judges. MEDLOCK, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005093 Application 10/240,479 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b). STATEMENT OF THE DECISION We REVERSE.1 BACKGROUND Appellants’ invention is directed to a computer-implemented method for providing a decision flowchart of a triage protocol for a medical condition of a patient (Spec. 3, ll. 20-30). Claim 1, reproduced below, is representative of the subject matter on appeal: 1. A computer-implemented method of providing a decision flowchart of a triage protocol for a medical condition of a patient, the flowchart including a plurality of decision blocks, each decision block relating to one or more patient symptoms, considerations, or symptoms and considerations, the flowchart being part of a software application, the method comprising: (a) programming the flowchart by: (i) providing a plurality of exit points in the flowchart, each exit point being associated with a respective decision block, each exit point being reached upon the presence or absence of a set of symptoms, set of considerations, or set of symptoms and considerations, each exit point recommending an action to be taken by the patient; 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed August 6, 2010) and Reply Brief (“Reply Br.,” filed December 28, 2010), and the Examiner’s Answer (“Ans.,” mailed October 28, 2010). Appeal 2011-005093 Application 10/240,479 3 (ii) providing on a computer user interface that interacts with the software application a plurality of recommended actions to be taken by the patient for the same presence or absence of a set of symptoms, set of considerations, or set of symptoms and considerations, the plurality of recommended actions including recommended actions that were previously programmed into the flowchart; and (iii) individually selecting a recommended action via the computer user interface at selected exit points from the plurality of recommended actions, the decision flowchart thereby providing different recommended courses of action for a patient having the same presence or absence of a set of symptoms, set of considerations, or set of symptoms and considerations, the recommended action being an exit message for the respective exit point; and (b) providing the programmed flowchart for use by a patient who has a medical condition. THE REJECTIONS The following rejections are before us for review: Claims 1-9, 11-23, and 25-28 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Jeffrey J. Guterman, et al. (Assessing the effectiveness of a computer-based decision support system for emergency department triage, IEEE, 594-95 (1993) (hereinafter “Guterman”)) in view of Iliff (US 6,234,964 B1, iss. May 22, 2001). Claims 10 and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Guterman in view of Iliff and Arora (US 5,911,145, iss. Jun. 8, 1999). Appeal 2011-005093 Application 10/240,479 4 ANALYSIS Independent claim 1 and dependent claims 2-14 We are persuaded of error on the part of the Examiner by Appellants’ argument that neither Guterman nor Iliff discloses or suggests programming a flowchart as recited in limitations (a)(ii) and (a)(iii) of claim 1 by providing, on a computer user interface, a plurality of recommended actions to be taken by a patient for a particular set of symptoms, considerations, or symptoms and considerations and individually selecting, via the computer interface, a recommended action from the plurality of recommended actions to thereby provide different recommended courses of action for patients having the same set of symptoms, considerations, or symptoms and considerations (App. Br. 6-10 and Reply Br. 1-3). The Examiner acknowledges that Guterman does not expressly disclose “‘a plurality of recommended actions to be taken by the patient for the same presence or absence of a set of symptoms, set of considerations, or set of symptoms and considerations’ and wherein a different selection [of a recommended course of action] may be made/reached for the same presence or absence of a set of symptoms or considerations,” i.e., limitations (a)(ii) and (a)(iii) of claim 1 (Ans. 6). And the Examiner relies on Iliff as disclosing these features (Ans. 6-7). Pointing to column 13, lines 49-67, column 16, lines 9-65, and Figure 8, the Examiner thus asserts that Iliff discloses that patients having the same symptoms receive different recommended courses of action based on the severity of the symptom or a determination that the symptom is a side effect related to the patient’s current therapy. Appeal 2011-005093 Application 10/240,479 5 A fatal flaw in the Examiner’s argument is that the cited portions of the Iliff specification, including Figure 8, are not related to programming a flowchart, which is subsequently provided for use by a patient who has a medical condition. Instead, the cited portions merely describe, with reference to Figures 8 and 9, the algorithm steps that are executed when a pre-programmed flowchart is used by a patient with a medical condition. There is no teaching or suggestion in Iliff that the recommended actions at the exit points of the flowchart shown in Figure 8 may be selectively programmed, via a computer user interface, before the flowchart is provided for use by a patient so that individual patients having the same “symptoms, set of considerations, or set of symptoms and considerations” receive different recommended actions. Instead, the flowchart is fixed such that two patients, using the Iliff system as shown in Figure 8, who have the same symptoms and same degree of symptom severity, will receive the same recommended action. In view of the foregoing, we will not sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 103(a). We also will not sustain the Examiner’s rejection of dependent claims 2-14. Independent claims 15 and dependent claims 16-28 Independent claim 15 includes language substantially similar to claim 1. Therefore, we will not sustain the Examiner’s rejections of independent claim 15 under § 103(a) for the same reasons as set forth above with respect to claim 1. We also will not sustain the Examiner’s rejection of dependent claims 16-28. Appeal 2011-005093 Application 10/240,479 6 DECISION The Examiner’s rejection of claims 1-28 under 35 U.S.C. § 103(a) is reversed. REVERSED hh