Ex Parte Brown

Patent Trial and Appeal Board

Apr 28, 2016

13303622 (P.T.A.B. Apr. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/303,622 11/23/2011
60683 7590 04/29/2016
Robert Bosch Healthcare Systems, Inc.
2400 GENG ROAD, SUITE 200
PALO ALTO, CA 94303
FIRST NAMED INVENTOR
Stephen J. Brown
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1576-1200 4109
EXAMINER
HARWARD, SOREN T
ART UNIT PAPER NUMBER
1631
MAILDATE DELIVERY MODE
04/29/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN J. BROWN1
Appeal2014-004594
Application 13/303,622
Technology Center 1600
Before MELANIE L. McCOLLUM, TINA E. HULSE, and
JACQUELINE T. HARLOW, Administrative Patent Judges.
McCOLLUM, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
monitoring method. The Examiner has rejected the claims as obvious. We
have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Claims 9-16, 19, and 20 are on appeal (App. Br. 1). Claims 9 and 11
are representative and are set forth in the Claims Appendix to Appellant's
AppealBrief(id. at 16-18).
1 Appellant identifies the real party in interest as Robert Bosch Healthcare
Systems, Inc. (App. Br. 1 ).
Appeal2014-004594
Application 13/303,622
Claim 9 is directed to a "method of monitoring a group of individuals
... having a risk factor for a disease" (id. at 16). Among other things,
claim 9 recites:
(B) creating queries and predefined response choices
corresponding to said queries regarding one or more of
symptoms, behaviors or environments of the individuals;
(G) distinguishing a group of individuals having similar
symptoms, behavioral or environmental profiles through
application of data mining techniques to the database; and
(H) categorizing the individuals into one or more
subgroups of individuals with similar symptom, behavioral, or
environmental profiles through application of statistical
methods.
(Id. at 16-17.)
Claim 11 depends from claim 9 and recites that the method "further
compris[ es] transmitting new queries and predefined response choices from
the centrally accessible computing unit to the remotely programmable
apparatus identified with the individual based upon receiving the selected
responses from the individual" (id. at 17-18).
Claims 9-16, 19, and 20 stand rejected under 35 U.S.C. § 103(a) as
obvious over Evers et al. (US 5,558,638, Sept. 24, 1996) in view of Iliff
(US 5,660,176, Aug. 26, 1997) (Ans. 2).2
2 In the Final Office Action, claims 9-16, 19, and 20 are also provisionally
rejected under 35 U.S.C. § 101 "as claiming the same inventions as those of
claims 39--48 of copending Application No. 11/359437" (Final Act. 8).
Appellant has not traversed this rejection on appeal. We therefore
summarily affirm it. See 37 C.F.R. § 41.39(a)(l).
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Application 13/303,622
The Examiner relies on Evers for disclosing many of the features of
the present claims (Final Act. 3--4). In particular, the Examiner finds that
Evers teaches "creating 'patient specific qualitative data questionnaires'" (id.
at 4).
The Examiner also relies on Iliff for disclosing features of the claims
(id. at 4---6). In particular, the Examiner finds that Iliff teaches:
b. creating a list of conditions, including queries about
symptoms and responses for those conditions, that is
specific to the patient ...
g. classifying patients according to the anatomic system of
their complaint and the severity of their symptoms ... ;
the severity assessment includes analyzing past patient
data ... , which constitutes "mining" the patient data
h. diagnosing patients (i.e. categorizing them into a diagnosis
subgroup) using "a medical algorithm" appropriate to their
complaint and symptoms ... ; the medical algorithm uses
statistical methods for diagnosis.
(Id. at 5.)
The Examiner concludes:
At the time of invention, said practitioner would have followed
the teaching of Iliff - that a questionnaire administered by a
computer includes predefined queries and responses regarding
symptoms and behaviors - and combined the questionnaire
containing predefined queries and responses of Iliff with the
medical monitoring system of Evers, which includes
administering personalized questionnaires as part of its
monitoring. Given the similarities of the systems of Evers and
Iliff, and their common function of using electronic devices to
provide medical care to a patient at home, said practitioner would
have readily predicted that the combination would result in
methods of obtaining, organizing and analyzing medical data
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Application 13/303,622
from a group of patients usmg remotely programmable
apparatuses.
(Id. at7.)
ANALYSIS
Evers is directed to "a system for monitoring the medical status of
patients at home from a care center" (Evers, col. 1, 11. 20-21 ). Iliff is
directed to "systems for giving medical advice to the general public" (Iliff,
col. 1, 11. 18-19). It is undisputed that Evers and Iliff teach or suggest all of
the features of steps (A)-(F) of claim 9. However, Appellant argues that the
applied references do not suggest steps (G) and (H) (id. at 5-9). We are not
persuaded.
As noted by the Examiner (Final Act. 5), Iliff discloses categorizing
individuals based on symptoms (Iliff, col. 35, 11. 45---64, & col. 39, 1. 19, to
col. 41, 1. 7). The Examiner finds, and Appellant does not adequately
dispute, that Iliff categorizes the individuals through the application of
statistical methods (Final Act. 5).3
As also noted by the Examiner (Ans. 7-8), Evers discloses that "the
care center database 600 provides information for medical research,
supportive records for medico-legal purposes, and most importantly a tool
for comparative analysis of patient progress against peer cases" (Evers,
3 In response to the Examiner's reliance on Iliff's column 39, line 19, to
column 41, line 7, Appellant argues that "[t]here is no indication in the
passage ... that the individuals are somehow placed into a subgroup with
other individuals based upon common symptoms, behavioral, or
environmental profiles" (App. Br. 8-9). Appellant does not, however,
dispute that this passage teaches the use of statistical methods.
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Appeal2014-004594
Application 13/303,622
col. 29, 11. 57---60). We agree with the Examiner that this teaching, together
with the disclosure of Iliff, suggests data mining the database to distinguish a
group of individuals having similar symptoms, as well as categorizing the
individuals through the application of statistical methods.
Appellant argues, however, that "[i]dentifying a group of people
based upon a disease diagnosis (i.e., the medical condition) is not the same
as distinguishing a group of individuals based upon symptoms or behavioral
or environmental profiles" (App. Br. 7; see also id. at 9 ("categorizing based
upon a diagnosed disease is not the same as sorting individuals into groups
based upon symptoms, behavioral, or environmental profiles")). However,
Iliff clearly teaches using symptoms to make a diagnosis (Iliff, col. 35,
11. 45---64, & col. 39, 1. 19, to col. 41, 1. 7), which as noted by the Examiner
places them in a particular category (Final Act. 5).
Appellant also argues that "the Examiner has failed to provide a clear
articulation explaining why one of ordinary skill in the art would find the
specialized system of Evers to be defective for its stated purpose, and would
therefore look to a diagnostic tool to correct the deficiencies in a specialized
monitoring system" (App. Br. 11 ). We are not persuaded.
"The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results."
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). As noted by
Appellant, there are differences between Evers and Iliff (App. Br. 10).
However, as noted by the Examiner, both references relate to "using
electronic devices to provide medical care to a patient at home" (Final
Act. 7). Given their similarities, we are not persuaded that one of ordinary
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Appeal2014-004594
Application 13/303,622
skill in the art would not have used the statistical methods, as disclosed in
Iliff, to categorize the patients of Evers. In addition, to the extent that Evers
does not teach the claimed predefined response choices (see Evers col. 28,
11. 19--45), we conclude that Appellant has not adequately explained why it
would not have been obvious, based on Iliff, to include them. In particular,
given the purposes on which the Examiner is relying on Iliff, we conclude
that merely pointing out differences between the two references is
insufficient to demonstrate that they would not have been combined.
In addition, as noted by Appellant (Reply Br. 3 & 5), Iliff discloses:
"It is not uncommon for the MDAT A system to give different advice to
different patients calling for the same complaint. In other words, the advice
given is patient-specific." (Iliff, col. 13, 11. 41--44.) Appellant argues that
"this passage actually teaches that the patients are not classified by
distinguishing a group of individuals having similar symptoms" and that
"even the same complaints in Iliff do not lead to a common classification"
(Reply Br. 3 & 5). We are not persuaded.
As noted above, Evers discloses that "the care center database 600
provides information for medical research, supportive records for medico-
legal purposes, and most importantly a tool for comparative analysis of
patient progress against peer cases" (Evers, col. 29, 11. 57---60). In addition,
based on the type of data being gathered in both Evers and Iliff (see, for
example, id. at col. 16, 11. 26-33, & col. 28, 11. 19--45, & Iliff, col. 35, 11. 45-
64, & col. 39, 1. 19, to col. 41, 1. 7), we agree with the Examiner that it
would have been obvious to distinguish a group of individuals having
similar symptoms and to categorize these individuals.
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With regard to claim 11, Appellant additionally argues that "the
passage of Evers relied upon by the Examiner does not expressly or
inherently disclose transmission of new queries from the central computing
unit in response to receipt of responses from the individual" (App. Br. 14).
We are not persuaded.
As noted by the Examiner (Final Act. 6), Evers discloses:
The subsystem is controlled by a remote base unit 150 which can
down load from the care center 600 computer Patient
Identification and Operating files to the base unit 150 in the home
initialization and operating protocol files specific to that
particular patient. Examples of these files include: medication
schedules, blood pressure protocols, patient identification data,
patient logistical data, parameter thresholds, auto dial phone
numbers and schedules, call-in schedule, infusion pump settings
and patient specific qualitative data questionnaires (relating to
her present progress).
(Evers, col. 29, 11. 15-25 (emphasis added).) We agree with Appellant that
this teaching does not specifically disclose the "transmission of new queries
from the central computing unit in response to receipt of responses from the
individual" (App. Br. 14).
However, as noted by the Examiner, "one of the functions of the
'remote base unit' is regular communication with the 'care center"' (Ans. 8).
In addition, Evers discloses that, "[i]f there is a change in patient
configuration, updated files are transmitted" (Evers, col. 19, 11. 33-34).
Evers also discloses:
... When a test or scheduled session has been completed,
the medical data obtained is sent ... to the care center staff who
enters the data into the database . . . . The staff then prepares the
necessary physician reports and transmits them to the physician
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Application 13/303,622
Upon receipt of the data, the physician interprets and
analyzes the data . . . . Based on the physician's analysis, the
care center staff calculates, orders, delivers drugs or supplies and
schedule nurse visits as required . . . . These instructions are sent
to the patient.
Based on the physician's analysis, the patient's
prescription, visits and schedules are changed . . . . The care
center staff accordingly changes the configuration, protocols,
etc., according to the new prescription via modem. The patient
receives the changes and implements the changes via modem or
manually.
(Id. at col. 16, 11. 50-67.) In view of these disclosures, we agree with the
Examiner that it would have been obvious to transmit new queries from the
care center computer based upon receiving responses from the individual
(Ans. 8).
CONCLUSION
The evidence supports the Examiner's conclusion that Evers and Iliff
suggest the methods of claims 9 and 11. We therefore affirm the
obviousness rejection of these claims. Claims 10, 13-16, 19, and 20 have
not been argued separately and therefore fall with claim 9, and claim 12 has
been argued with claim 11 and therefore falls with claim 11. 3 7 C.F .R.
§ 41.37(c)(l)(iv).
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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