Ex Parte NihalDownload PDFPatent Trials and Appeals BoardJun 25, 201914008063 - (D) (P.T.A.B. Jun. 25, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 14/008,063 7590 Perwiaz Nihal FILING DATE 09/27/2013 06/25/2019 439 Upper Jaffrey Road Dublin, NH 03444 FIRST NAMED INVENTOR Perwaiz Nihal 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. NIHPllOlPPPCPU 4851 EXAMINER ULLAH,ARIF ART UNIT PAPER NUMBER 3683 MAIL DATE DELIVERY MODE 06/25/2019 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 PERW AIZ NIHAL Appeal2018-002774 Application 14/008,063 Technology Center 3600 Before JOSEPH L. DIXON, JAMES W. DEJMEK, and STEPHEN E. BELISLE, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal2018-002774 Application 14/008,063 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § I34(a) from a rejection of claims 1, 3, 5-11, and 13-25. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. The claims are directed to systems and methods for providing a service quality measure receiving the service event attribute prior to delivery of the service event. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A processor based method of determining a service quality category measure, the method comprising: receiving a service event attribute from a service recipient reflecting a service event; receiving the service event attribute prior to delivery of the service event to the service recipient; and automatically correlating with a processor the service event attribute with a service quality category to determine a service quality category measure. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Wennberg Manning et al. Torress Qadri US 2007 /0078680 Al US 2008/0059230 Al US 2010/0235228 Al US 2012/0084101 Al Apr. 5, 2007 Mar. 6, 2008 Sept. 16, 2010 Apr. 5, 2012 1 Appellant's indicates that the inventor, Perwaiz Nihal, is the real party in interest. 2 Appeal2018-002774 Application 14/008,063 Dobell US 2013/0204675 Al Aug. 8, 2013 HCAHPS Survey: Patients' Perspective of Care to NAPH [National Association of Public Hospitals and Health Systems] Research Brief October 2008 pp 1-8 (hereinafter "NAPH"). REJECTIONS The Examiner made the following rejections: Claims 1, 3, 5-11, and 13-25 stand rejected under 35 U.S.C. § 101 because the claimed invention is not directed to patent-eligible subject matter. Claims 1, 10, 13, 14, 19, and 22 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Manning in view of Qadri. Claims 5, 6, 15, 16, and 20 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable Manning in view of Qadri, in further view of NAPH. Claims 3, 17, 18, and 21 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Manning in view of Qadri in further view of Torress. Claim 25 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Manning in view of Qadri in further view of Do bell. Claim 7 stands rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Manning in view of Qadri in further view of Wennberg and in further view ofNAPH. Claims 11, 23, and 24 stand rejected under pre-AIA 35 U.S.C. § I03(a) as being unpatentable over Manning in view of Qadri in further view of Torress and in further view ofNAPH. 3 Appeal2018-002774 Application 14/008,063 Claims 8 and 9 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Manning in view of Qadri in further view of Wennberg in even further view ofNAPH, and in even further view of Torress. ANALYSIS 35 U.S.C. § 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 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. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 70 (2012) (brackets in original) (citing Diamond v. Diehr, 450 U.S. 175, 185 (1981)). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court's two-step framework, described in Mayo and Alice. Alice Corp. v. CLS Banklnt'l, 573 U.S. 208, 217-18 (2014) (citing Mayo, 566 U.S. at 75-77). In accordance with that framework, we first determine what concept the claim is "directed to." See Alice, 573 U.S. at 218-19 ("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. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4 in petitioners' application explain the basic concept of hedging, or protecting against risk."). If the claim is "directed to" an abstract idea, we tum 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 4 Appeal2018-002774 Application 14/008,063 concept' sufficient to 'transform' the claimed abstract idea into a patent- eligible application." Alice, 573 U.S. at 221 (internal 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. ( 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. The PTO recently published revised guidance on the application of § 101. USPTO's January 7, 2019 Memorandum, 84 Fed. Reg. 50, 2019 Revised Patent Subject Matter Eligibility Guidance ("Revised Guidance"). Under that guidance, 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) ("Prong One"); and (2) additional elements that integrate the judicial exception into a practical application ("Prong Two") (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, do we 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 Revised Guidance. 5 Appeal2018-002774 Application 14/008,063 With respect to independent claims 1, 13, and 19, Appellant presents arguments to independent claim 1, and Appellant does not set forth separate arguments for patentability of independent claims 13 and 19. As a result, we select independent claim 1 as the representative claim for the group and address Appellant's arguments thereto. See 37 C.F.R. § 4I.37(c)(l)(iv) (2016). Revised Guidance Step 1 Step 1 of the Revised Guidance asks whether the claimed subject matter falls within the four statutory categories of patentable subject matter identified by 35 U.S.C. § 101: process, machine, manufacture, or composition of matter. See Revised Guidance. Claim 1 recites "processor based method of determining a service quality category measure" and Appellant does not argue the Examiner erred in concluding claim 1 falls within the four statutory categories of patentable subject matter. (App. Br. 12). We agree with the Examiner's conclusion because claim 1 falls within the process category. Revised Guidance Step 2A(i) Under Step 2A(i) of the Revised Guidance, we determine whether the claims recite 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). See Revised Guidance. The Examiner maintains that independent claim 1 recites "an idea of itself in that the limitations are directed to an uninstantiated concept, plan or scheme, as well as a mental process." (Final Act. 4; Ans. 5). 6 Appeal2018-002774 Application 14/008,063 We refine the Examiner's determination of the abstract idea to identify that claim 1 recites the following limitations in the processor-based method of determining a service quality category measure, the method compnsmg: receivmg a service event attribute from a service recipient reflecting a service event; receiving the service event attribute prior to delivery of the service event to the service recipient; and automatically correlating with a processor the service event attribute with a service quality category to determine a service quality category measure. (Emphasis added). This limitation, under its broadest reasonable interpretation, recites a processor-based method of determining a service quality category measure, which is merely personal behavior or relationships or interactions between people using available information. We additionally note that the preamble of independent claim 1 recites by "a processor based method of determining a service quality category measure," but the claimed method provides no details of the "determining a service quality category measure" beyond reciting "a processor." We find the two "receiving" steps to be insignificant extra-solution activity. The court also guides that data gathering is a classic example of insignificant extra-solution activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en bane), aff'd sub nom, Bilski v. Kappas, 561 U.S. 593 (2010). Accordingly, we conclude the claims recite a method of managing personal behavior or relationships or interactions between people, which is one of the certain methods of human activities identified in the Revised Guidance, and thus an abstract idea. Revised Guidance 52. 7 Appeal2018-002774 Application 14/008,063 Revised Guidance Step 2A(ii) Under the Revised Guidance, if a claim recites a judicial exception, in Step 2A(ii) we determine whether the recited judicial exception is integrated into a practical application of that exception by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception( s ); and (b) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. If the recited judicial exception is integrated into a practical application, the claim is not directed to the judicial exception. Here, claim 1 recites the additional elements/steps of "a processor," "prior to delivery of the service event to the service recipient," and "receiving." We find that Appellant did not dispute any of these additional limitations in the claimed invention with respect to the abstract idea, and the Examiner made specific findings and conclusions in the Examiner's Answer with regards to these additional elements as they relate to Step 2A of the Alice analysis. (Ans. 5-7). Considering the claim as a whole, interaction of all the steps using the available data at an unspecified location "with a processor" does not apply or use the abstract idea in a meaningful way such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Claim 1 recites various limitations consistent with this characterization. Additionally, the Specification further supports this characterization: Conventional technologies for enabling service providers to generate self assessment measures suffer from a variety of deficiencies. In particular, conventional technologies for generating self assessment measures are limited in that 8 Appeal2018-002774 Application 14/008,063 conventional technologies do not generate self assessment measures that are based on the industry or government standards that are ultimately used to assess the service providers. Conventional technologies do not generate predicted assessment measures that can be used to improve the services while the services are being provided in an effort to positively impact the future results of the industry or government based assessments. Conventional technologies do not provide near real time predicted assessments on an ongoing basis that provide service providers with trending information associated with the services provided. (Spec. ,r 6). We note that the language of independent claim 1 does not set forth a "self assessment" or "industry or government based assessments." The Specification also states: In other words, the service quality category measure providing process receives a services event attribute reflecting a service event, such as a service request. The service request may be received from a service recipient receiving services provided by a service provider. In an example embodiment, the service quality category measure providing process automatically correlates the service event attribute with a service quality category to determine a service quality category measure. In an example embodiment, the service quality category measure providing process then provides the service quality category measure to a graphic interface, for example, to report the service quality category measure to a service provider. This may give the service provider important service assessment information in near real time, allowing the service provider the opportunity to improve the services that are provided to service recipients. By providing assessment information on an ongoing basis, the service provider can determine how the assessment is trending, for example, with respect to time. (Spec. ,r 8) ( emphasis added). The Specification further discloses multiple components used in a system, and they may be in a single unit or multiple functional units, in one 9 Appeal2018-002774 Application 14/008,063 system or distributed across a network and "may be realized in hardware, software, or a combination of hardware and software. Any kind of computer/server system(s), or other apparatus adapted for carrying out the methods described herein, is suited." (Spec. ,r 120; see generally Spec. ,r,r 122-130; Fig. 9). From the high level of description in the Specification, we find Appellant's Specification merely identifies "a processor based method of determining a service quality category measure," as a generic computer processor that performs the function of automatically correlating with a processor the service event attribute with a service quality category to determine a service quality category measure without any substantive details thereof. Additionally, the timing of the receiving step with respect to the unclaimed step regarding a service event does not apply or use the abstract idea in a meaningful way such that the claim as a whole is more than a drafting effort designed to monopolize the exception. Thus, we determine that the abstract idea is not integrated into a practical application. Revised Guidance Step 2B Under the Revised Guidance, only if a claim ( 1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we 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 § 2106.0S(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. Here, the Examiner maintains: 10 Appeal2018-002774 Application 14/008,063 The method steps relied upon by the Applicant as recited does not improve upon another technology nor do they improve the functioning of the computer itself. Further, the claims do not mention to any use of a specialized computer and/or processor. Rather, the Applicant seems to use of general purpose computers and the internet to gather information. The abstract idea is not particular to a technological environment, but is merely being applied to a computer realm. The process of gathering and correlating information regarding services provided can be done without a computer, and thus the claims are not "necessarily rooted", but rather they are utilizing computer technology to perform the abstract idea. (Final Act. 6-7) ( emphasis omitted). The Examiner further identifies paragraph 120 of Appellant's Specification which discloses "[a]ny kind of computer/server system(s), or other apparatus adapted for carrying out the methods described herein, is suited. A typical combination of hardware and software could be a general-purpose computer system" and maintains that the generic computer components are insufficient to be "significantly more" than the abstract idea and "[t]he field of quality service measuring does not constitute an improvement to a technology." (Ans. 9-11) (emphasis omitted). We agree with the Examiner that the claim simply appends well- understood, routine, conventional activities previously known to the industry, specified at a high level of generality and is insufficient to constitute "significantly more" than the abstract idea and independent claim 1 is directed to an abstract idea. Appellant does not set forth separate arguments for patent eligibility for independent claims 13 and 19 and these claims fall with representative independent claim 1. Appellant also does not set forth separate arguments for patent eligibility of the dependent claims 3, 5-7, 9-11, 14--18, 20-22, and 25 Therefore, these claims will fall with representative independent 11 Appeal2018-002774 Application 14/008,063 claim 1. Additionally, Appellant did not file a reply brief to further respond to the examiner's clarifications. Appellant's Arguments With respect to representative independent claim 1, Appellant provides limited arguments and contends the Examiner erred because the Examiner improperly applies Step 2A of the 2014, 2015, and 2016 Guidances on Patent Subject Matter Eligibility, all collectively (the "IEG"), and fails to make a prima facie case. (App. Br. 12). Appellant further contends that the Examiner misapplies Step 2B of the IEG and the Examiner's overgeneralizations at least ignore limitations directed to the timing of receiving attributes such as "receiving the service event attribute prior to delivery of the service event to the service recipient" ( claim 1 ), "a service request attribute of a service request for a service event to be performed" ( claim 13) and "the service request comprising a request for a service event to be performed" (claim 19). (App. Br. 14). Appellant's arguments have been addressed above applying the Revised Guidance. Claims 23 and 24 With respect to claims 23 and 24, Appellant again contends that the Final Action failed to adequately consider or address the claim limitations and a prima facie case of ineligibility was not established. (App. Br. 15-17). Appellant further contends with respect to claims 23 and 24 that the Examiner's rejection under 35 U.S.C. § 101 fails to satisfy the requirement for a prima facie case of rejection by failing to even consider an analysis of these claims under Step 2B. (App. Br. 15). Appellant further argues "that 12 Appeal2018-002774 Application 14/008,063 all of the limitation[ s] of these claims were generalized in the Final Action to be included in an 'an idea of itself' under a Step 2A analysis. The Final Action at paras. 20 and 41-45 similarly rejects claims 23 and 24 with a Step 2A conclusion that all of the limitations simply narrow the 'idea of itself.'" (App. Br. 15). Appellant further contends that the Examiner has incorrectly based the rejection on an improper overgeneralization that all of the claim limitations are absorbed in the "idea of itself." (App. Br. 15). Appellant further contends that Appellant submits that at least these two claims as a whole recite methods of determining values for variables that add "significantly more" than the abstract ideas. (App. Br. 16). We find Appellant's argument to be unavailing because Appellant does not support this contention with any specific argument detailing support in the claim language for the contention. Moreover, Appellant argues: Claims 23 and 24 recite a service quality category correlating to a Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) measure and provides a way to parallel/predict HCAHPS measures while a patient is in the healthcare setting. This solution is very helpful because HCAHPS measures are not to be taken during in the healthcare setting (Spec. at least at paras. [0074] and [0139]). Therefore, this claim solves the technical problem of how to predict or parallel the HCAHPS measure with a service request made for a service event yet to be performed. (App. Br. 16-17). We disagree with Appellant's general argument and find that claims 23 and 24 further detail the field of use to a patient in a health care facility healthcare data and recite the use of the known Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) measures and further details the abstract idea of automatically correlating ( addressed 13 Appeal2018-002774 Application 14/008,063 above) to a sum of plural correlated values and a subsequent comparison of the service quality category measure to a post rendering service of service quality category measure. Moreover, we find Appellant's arguments unavailing, and we find paragraphs 74 and 139 of the Specification do not further limit the claimed system to "predicting" or "parallel" the HCAHPS measures and do not limit the claimed invention to HCAHPS measures that are not to be taken in the healthcare setting. Appellant further argues that the "prior to a rendering of the service" limitation confines the abstract idea to a particular, practical application because the combination of limitations is not well understood, routine or conventional activity. (App. Br. 18). Appellant contends that the claimed invention is like McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed. Cir. 2016) (McRO), in that the claims do not "simply use a computer as a tool to automate conventional activity" because "[b Jase claim 1 recites a service quality category correlating to a Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) measure and provides a way to parallel/predict HCAHPS measures while a patient is in the healthcare setting." (App. Br. 18). We disagree with Appellant because Appellant's argument fails because it is not commensurate with the scope of the claim. See In re Self, 671 F.2d 1344, 1348 (CCPA 1982) ("[A]ppellant's arguments fail from the outset because ... they are not based on limitations appearing in the claims."); In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) ("[The] proffered facts . . . are not commensurate with the claim scope and are therefore unpersuasive."). Appellant further contends the claimed invention overcomes "a problem specifically arising from the computer based technology of 14 Appeal2018-002774 Application 14/008,063 measuring health care facility service quality." (App. Br. 19). We disagree with Appellant and find the invention is directed to the information regarding surveying patients in healthcare facilities. Therefore, Appellant's argument is unpersuasive and the invention is not directed to "more than routine and conventional limitations of computers." (App. Br. 19). As a result, we find the claimed limitations to be directed to use of available information in the same manner as certain methods of organizing human activity such as managing personal behavior in combination with mathematical concepts, and Appellant's arguments do not show dependent claims 23 and 24 are directed to patent-eligible subject matter. Claim 8 With respect to claim 8, Appellant contends that the additional elements of updating a model provide "significantly more" both individually and as an order combination to improve technology. (App. Br. 20-21 ). The Examiner maintains that: [t]he limitation of updating the predicting model based on the actual category measure and the predicted measure category difference only further narrows the abstract idea ( organizing information through mathematical correlations), and . . . The additional elements (updating a model) fail to provide "significantly more" both individually and in an ordered combination, do not provide an improvement to the technology, and merely add an additional mathematical step, thus narrowing the abstract idea. (Ans. 19). We agree with the Examiner that the claimed invention further limits the abstract idea, and we note that the claim language and the Specification 15 Appeal2018-002774 Application 14/008,063 do not specifically limit the details of the model. (See generally Spec. ,r,r 76, 77, 89, 90 ("The predicting model may be any type of predictive model, such as a statistical model, to predict or extrapolate a measure based on past measures. For illustration only, and not for limitation, suitable statistical models include linear regression analysis or moving averages of selected measures.") (Emphases added)). In response, we conclude the claimed invention contains plural abstract ideas and merely combining several abstract ideas does not render the combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) ("Adding one abstract idea ... to another abstract idea ... does not render the claim non-abstract."); see also FairWarning IP, LLC v. Iatric Systems, 839 F.3d 1089, 1093-94 ( determining the pending claims were directed to a combination of abstract ideas). As a result, we find the claimed limitations to be directed to use of available information in the same manner as certain methods of organizing human activity such as managing personal behavior in combination with mathematical concepts, and Appellant's arguments do not show dependent claim 8 is directed to patent-eligible subject matter. 35 U.S.C. § 103(a) Claim 1 With respect to claims 1, 13, and 19, Appellant relies upon the arguments advanced with respect to independent claim 1. (App. Br. 22). Therefore, we select independent claim 1 as the representative claim and will address Appellant's arguments thereto. See 37 C.F.R. § 4I.37(c)(l)(iv). 16 Appeal2018-002774 Application 14/008,063 With respect to representative independent claim 1, Appellant contends "the limitations of claim 1 should not be rejected by a combination including Manning and Qadri because there is no teaching, suggestion, or motivation in the references to modify or combine the references." (App. Br. 21 ). Appellant submits it is not obvious to "determine a service quality measure" from a "service attribute reflecting a service event" received "prior to delivery of the service event" as claimed. (Id.) Appellant disagrees with the Examiner's motivation for the combination of the Manning and Qadri references. (App. Br. 21-22). Appellant contends the Manning reference does not teach evaluating services prior to the delivery of services as claimed, and the Qadri reference teaches populating medical records, but does not address service quality. Appellant further contends the information collected by Qadri is very different than the information collected by Manning or the information claimed. (App. Br. 22). Appellant further contends that: nowhere does Oadri disclose collecting information to be collected before the delivery of a service to be used as a quality measure. Neither the references nor the proposed combination include a teaching, suggestion or motivation to provide an ability to receive service event attributes for determining a service quality measure well before current methods, or well before HCAHPS scores can be determined. (App. Br. 21-22). We find Appellant's arguments are not persuasive because the arguments not commensurate in the scope with the express language of independent claim 1. Appellant further contends that: even if the references can be combined, the limitations of claim 1 should not be rejected by a combination including Manning because the proposed modification to Manning changes the 17 Appeal2018-002774 Application 14/008,063 reference's principle operation. Incorporating the features of Qadri in Manning would require a substantial reconstruction and redesign of the elements shown in Manning as well as a change in the basic principle under which Manning was designed to operate. Manning is clearly intended to address gathering information after services are rendered. (App. Br. 22). We find that Appellant's argument generally relies upon that "service event attribute from a service recipient reflecting a service event" is received "prior to delivery of the service event to the service recipient" (App. Br. 21- 22), which would necessarily exist because the service request must always come before delivery of the service event. (The request for a specific service must come before the delivery of the requested specific service.) We agree with the Examiner that Appellant's arguments address the references individually rather than the combination as proffered by the Examiner in the grounds of the rejection, and we further agree with the Examiner that the Manning and Qadri references are analogous art. (Ans. 20-22; Final Act. 31-38). We find that Appellant's argument is not commensurate with the express language of independent claim 1. We further find that the Specification identifies problems with conventional technologies. (See Spec. ,r 6)). We further find that the Specification discloses "the service event attribute may be a service request initiated by a patient in a health care facility, and the service quality category may comprise at least one service quality category that correlates to an HCAHPS measure." (Spec. ,r 11) (emphasis added). From the disclosure, we find the claimed invention is broader than the disclosed problem and solution, and the claimed invention does not correspond to the Appellant's arguments. Claim terms in a patent 18 Appeal2018-002774 Application 14/008,063 application are given the broadest reasonable interpretation consistent with the Specification, as understood by one of ordinary skill in the art. In re Crish, 393 F.3d 1253, 1256 (Fed. Cir. 2004). Our reviewing court states that "the words of a claim 'are generally given their ordinary and customary meaning."' Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) ( en bane) ( citations omitted). "In the patentability context, claims are to be given their broadest reasonable interpretations[,] ... limitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Applicants always have the opportunity to amend the claims during prosecution and broad interpretation by the Examiner reduces the possibility that the claim, once issued, will be interpreted more broadly than is justified. In re Prater, 415 F.2d 1393, 1404---05 (CCP A 1969). Claims 23 and 24 With respect to the dependent claims 23 and 24, Appellant presents arguments to the claims together. Therefore, we select dependent claim 23 as the representative claim and address Appellant's arguments thereto. 37 C.F.R. § 4I.37(c)(l)(iv). With respect to dependent claim 23, Appellant traverses the obviousness rejection of dependent claim 23 because the Examiner stated, in the Advisory Action, that "Examiner acknowledges the amendments read over the current rejection." (App Br. 11-12). We find Appellant's general argument to take the Examiner's statement out of context. Clearly, the proposed amendment to independent claim 1 would change the scope and consideration of all the dependent claims from amended independent claim 1 from that of prior dependent claim 23. Additionally, the proposed amended 19 Appeal2018-002774 Application 14/008,063 claim 1 would necessarily differentiate over the proffered rejection of the unamended independent claim 1 because the Examiner relied upon fewer references in the obviousness rejection of the unamended claim 1 than in the rejection of dependent claim 23. Therefore, Appellant's general argument is unavailing. Appellant further argues that: Appellant understands. However, Appellant disagrees with the Final Action's proposal that the "NAPH reference does not teach away from surveying before the discharge." The HCAHPS specifically state that: "Surveying of sampled patients must be initiated between 48 hours and six weeks ( 42 days) after discharge, regardless of the mode of survey administration. Distributing surveys to patients before they are discharged is not allowed." (Emphasis omitted.) HCAHPS surveys are drawn randomly from eligible discharges and data must not be administered while the patient is still in the hospital. This is inconsistent with the teachings of Manning. Appellant submits that since the NAPH and HCAHPS clearly teach away from surveying before discharge, they teach away from the embodiment claimed. (App. Br. 23). We disagree with Appellant because the Examiner relied upon the NAPH reference for teaching the specific HCAHPS survey measures regarding a standardized survey instrument and the Examiner did not specifically rely upon performing the HCAHPS survey. (Final Act. 59-65). Additionally, Appellant has not identified where in the NAPH reference the specific quotation is found which Appellant relied upon. As a result, 20 Appeal2018-002774 Application 14/008,063 Appellant's argument is not based upon the teachings and suggestions within the NAPH reference. Appellant further contends that the teachings ofNAPH "should not be combined with Qadri because NAPH, as a whole, teaches away from such a solution." (App. Br. 23). "A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). We disagree with Appellant's general contention because Appellant has identified no "teaching away" within the NAPH reference which criticizes, discredits, or otherwise discourages the solution claimed. As a result, Appellant's argument does not show error in the Examiner's factual findings or conclusion of obviousness of representative dependent claim 23 and dependent claim 24 not separately argued. Claim 8 With respect to dependent claim 8, Appellant addresses a number of deficiencies in the base combination regarding intervening claim 7 regarding the Wennberg reference. (App. Br. 24--25). Appellant further contends that the Torress reference does not disclose creating "an actual category measure difference" or "an actual predicted measure category difference." (App. Br. 25). Appellant contends because Torress does not disclose these elements as proposed, the proposed combination with Torress does not anticipate the claimed embodiment. (App. Br. 26). We disagree with Appellant. We find the Examiner provides a detailed response regarding dependent claim 8 addressing the teachings and 21 Appeal2018-002774 Application 14/008,063 suggestions of the W ennberg reference regarding "predicted measures" and the combination of the teachings of Manning, Qadri, Wennberg, NAPH, and Torress. (Ans. 25-26; Final Act. 54--73). Additionally, in the Final Action, the Examiner addresses the Torress reference as it teaches and suggests actual category measures to achieve a care providing rating which prospective customers can then easily compare the ratings from various care providers. (Final Act. 71-72). We find Appellant's arguments do not show error in the Examiner's factual findings or conclusion of obviousness of dependent claim 8. Reply Brief Appellant did not file a Reply Brief to further respond to the Examiner's clarifications in the Examiner's Answer regarding the patent eligibility rejection and the obviousness rejections of claims 1, 8, and 23. Therefore, Appellant has not shown error in the Examiner's clarifications and responses of claims 1, 8, and 23. CONCLUSIONS The Examiner did not err in rejecting claims 1, 3, 5-11, and 13-25 based upon a lack of patent-eligible subject matter under 35 U.S.C. § 101, and the Examiner did not err in rejecting claims 1, 3, 5-11, and 13-25 based upon obviousness under 35 U.S.C. § 103. DECISION For the above reasons, we sustain the Examiner's lack of patent- eligible subject matter rejection of claims 1, 3, 5-11, and 13-25, and we sustain the Examiner's obviousness rejections of claims 1, 3, 5-11, and 13- 25. 22 Appeal2018-002774 Application 14/008,063 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.I36(a)(l)(iv). AFFIRMED 23 Copy with citationCopy as parenthetical citation