Ex Parte Gorup et al

Patent Trial and Appeal BoardMar 23, 2016

11278094 (P.T.A.B. Mar. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111278,094 0313012006 46169 7590 03/25/2016 SHOOK, HARDY & BACON L.L.P. (Cerner Corporation) Intellectual Property Department 2555 GRAND BOULEVARD KANSAS CITY, MO 64108-2613 FIRST NAMED INVENTOR Paul N. Gorup 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. CRNI.127584 5837 EXAMINER RINES, ROBERT D ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 03/25/2016 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): IPDOCKET@SHB.COM IPRCDKT@SHB.COM BPARKERSON@SHB.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Exparte PAUL N. GORUP and BARRY C. DYER Appeal2013-008500 Application 11/278,094 Technology Center 3600 Before NINA L. MEDLOCK, BRUCE T. WIEDER, and SCOTT C. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. Â§ 134 from the rejection of claims 1-5, 8-10, 12-14, and 16, which are all of the pending claims. 1 We have jurisdiction under 35 U.S.C. Â§ 6. We REVERSE. 1 Appellants state that the real party in interest is Cemer Innovation, Inc. Appeal Br. 3. Appeal2013-008500 Application 11/278,094 Claimed Subject Matter The claims are directed to a measuring performance improvement for a clinical process. Spec. 1 (Title). Claims 1, 8, and 16 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A computer-storage medium storing computer-useable instructions that, when used by a computing device, cause the computing device to perform a method in a clinical computing environment for measuring performance improvement that has been realized for a current clinical process within one or more clinical facilities, the current clinical process being of a particular type of clinical process, the method comprising: accessing optimized practice process model data defining a plurality of critical levers based on an optimized clinical process, the optimized clinical process having been predefined for the particular type of clinical process, each critical lever corresponding with an activity within the optimized clinical process that has been predetermined to have a greater potential to impact outcomes for the particular type of clinical process as compared to other activities in the optimized clinical process that have not been predetermined as critical levers, the optimized practice process model data further defining benefit metrics for at least one of the critical levers, wherein the optimized clinical process, critical levers, and benefit metrics have been predefined based at least in part on analysis of one or more selected from the following: medical literature, published medical guidelines, and operational evidence collected from a plurality of clinical facilities; accessing clinically-related data from activities within the current clinical process corresponding with the plurality of critical levers defined by the optimized practice process model data; identifying a plurality of opportunities to improve the current clinical process by comparing the clinically- 2 Appeal2013-008500 Application 11/278,094 related data to at least one of an optimal measure, benchmark measure, and a target measure for each of the plurality of clinical levers defined by the optimized practice process model data, each opportunity to improve the current clinical process corresponding with a subset of critical levers, each subset including one or more of the plurality of critical levers; identifying, from the plurality of opportunities, a first opportunity adopted to implement changes to improve the current clinical process, the first opportunity corresponding with a first subset of critical levers; after changes to improve the current clinical process have been implemented based on the first opportunity, accessing one or more current measures for the current clinical process based on activities of the one or more clinical facilities during a current period of time, each of the one or more current measures corresponding with the first subset of critical levers; accessing one or more baseline measures for the current clinical process based on activities of the one or more clinical facilities during a previous period of time preceding the current period of time, each of the one or more baseline measures corresponding with the first subset of critical levers; determining a change in at least one critical lever from the first subset of critical levers from the previous period of time to the current period of time by comparing at least one of the one or more current measures against at least one of the one or more baseline measures; and determining a performance improvement realized by adopting the first opportunity to improve the current clinical process at the one or more clinical facilities by applying at least a portion of the benefit metrics to the change in the at least one critical lever. 3 Appeal2013-008500 Application 11/278,094 References and Rejections The Examiner relies on the following references in rejecting the claims on appeal: Bi to Bulitta US 2003/0216939 Al US 2004/0176980 Al Nov. 20, 2003 Sept. 9, 2004 Claims 1-5, 8-10, 12-14, and 16 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Bito and Bulitta. Non-Final Act. 3 (mailed Dec. 15, 2011). ANALYSIS Appellants argue, inter alia, that the cited references do not teach or suggest "the use of critical levers that correspond with activities that have been predetermined to have a greater potential to impact outcomes for a particular type of clinical process," as required by claim 1. Br. 10. In particular, Appellants assert, "Bito is silent regarding employing critical levers as in claim 1 that are activities that have been predetermined to have a greater potential to impact outcomes. Instead, Bito 's clinical pathway is merely a collection of clinical services, with no thought given to how each of those services impacts outcomes." Id. In response, the Examiner directs us to the Specification that Appellants have cited as support for the disputed claim limitation. See Ans. 4. In particular, the Examiner finds that the Specification discloses that optimal clinical processes may be defined based on literature, best practices, and operational evidence (see id. at 5), but does not contain any other "disclosure regarding ... calculations or criteria for selection of an optimized model or designation of certain activities as critical" (id. at 6). 4 Appeal2013-008500 Application 11/278,094 The Examiner also finds that the Specification does not contain any disclosure regarding predetermination of activities as having greater potential to impact outcomes compared to other activities, other than "the mere statement that the selected activities have a greater potential to impact outcomes based on identification of the activities in the optimized model." Id. Based on these findings regarding the Specification, the Examiner determines that the claim limitation "critical lever corresponding with an activity within the optimized clinical process that has been predetermined to have a greater potential to impact outcomes for the particular type of clinical process as compared to other activities in the optimized clinical process that have not been predetermined as critical levers" should be construed as encompassing any activity that "in a general sense, [has] the potential to influence outcomes compared to other activities," if that activity is part of a clinical process that was "determined based on best practices and/or operational data/evidence." Ans. 7. The Examiner finds that Bito discloses a process model that includes activities that are derived from the "case mix" and the "clinical pathway database," and further finds that the "case mix" and "clinical pathways" are "derived from previous pathways and cases in which previous practice is utilized to define the pathway." Ans. 9. The Examiner then applies the claim construction set forth above, and determines, based on these findings, that Bi to discloses critical levers of the type required by claim 1. See id. We are persuaded that the Examiner erred in finding that Bito teaches critical levers of the type required by claim 1. 5 Appeal2013-008500 Application 11/278,094 Claim l requires an "optimized clinical process" that includes two types of "activities:" (1) "critical levers," i.e., activities that have been "predetermined to have a greater potential to impact outcomes ... as compared to other activities in the optimal clinical process," and (2) "other activities in the optimal clinical process that have not been predetermined as critical levers." Thus, an optimized clinical process does not necessarily include critical levers. Critical levers only exist if there has been a predetermination that some activities in the optimized clinical process "have a greater potential to impact outcomes" as compared to other activities in the same process flow. In contrast, the Examiner's construction of critical lever encompasses any activity that "in a general sense, [has] the potential to influence outcomes compared to other activities," so long as that activity is included in a practice model that was "determined based on best practices and/or operational data/evidence." See Ans. 7. This construction is unreasonably broad because it does not take into account the claim language limiting critical levers to activities within a process that have been "predetermined to have a greater potential impact on outcomes ... as compared to other activities" in the same process. The Examiner does not find that Bito discloses a process model containing activities that have been "predetermined to have a greater potential to impact outcomes ... as compared to other activities" in the process model. Thus, the Examiner's determination that Bito discloses a "critical lever" of the type required by claim 1 is not adequately supported. Independent claims 8 and 16 similarly require critical levers that correspond to activities that have been "predetermined to have a greater potential to impact outcomes ... as compared to other activities in the 6 Appeal2013-008500 Application 11/278,094 optimal process flow that have not been predetermined as critical levers." The rejection of these claims is deficient for the same reason discussed above with respect to claim 1. Claims 2-5, 9, 10, and 12-14 each depends from, and thus incorporates the limitations of, claims 1 or 8. The rejection of claims 2-5, 9, 10, and 12-14 is deficient for the same reasons discussed above. DECISION For the foregoing reasons, we reverse the Examiner's decision rejecting claims 1-5, 8-10, 12-14, and 16. REVERSED 7