Ex Parte Teodorescu

Patent Trials and Appeals Board

Feb 28, 2019

12643310 - (D) (P.T.A.B. Feb. 28, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/643,310 12/21/2009
26356 7590 03/04/2019
ALCON
IP LEGAL
6201 SOUTH FREEWAY
FORT WORTH, TX 76134
FIRST NAMED INVENTOR
Dan V. Teodorescu
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.
PAT903592-US-NP 4252
EXAMINER
SANTOS RODRIGUEZ, JOSEPH M
ART UNIT PAPER NUMBER
3793
NOTIFICATION DATE DELIVERY MODE
03/04/2019 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):
patent. docketing@alcon.com
alcon_pair@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAN V. TEODORESCU 1
Appeal2017-006327
Application 12/643,310
Technology Center 3700
Before TONI R. SCHEINER, JEFFREY N. FREDMAN, and
JOHN G. NEW, Administrative Patent Judges.
SCHEINER, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims directed to a graphical user interface. The Examiner rejected the
claims as directed to patent-ineligible subject matter, and as obvious. We
have jurisdiction under 35 U.S.C. § 6(b ).
We reverse.
1 Appellant identifies "Alcon Research, Ltd .... owned by Novartis AG," as
the real party in interest. Br. 2.
Appeal2017-006327
Application 12/643,310
BACKGROUND
The Specification, titled "Event Driven Configuration of a Surgical
System Console" (Spec. 1 ), describes a graphical user interface "for
modifying preprogrammed relationships between a plurality of subsystems
of a surgical system" (id. at 3:2-3). For example, the user interface for an
emulsification surgical system or console may comprise a display screen
displaying representations of various surgical subsystems, such as a foot
pedal subsystem, a fluidics subsystem, an aspiration vacuum, an irrigation
system, an ultrasonic generator, a motorized intravenous pole subsystem, a
pneumatic vitrectomy cutter subsystem, etc. Id. at 7: 11-21. The
configuration of the user interface allows a "user to identif[y] a first
subsystem to monitor for a triggering event and a second subsystem to
respond to the triggering event." Id. at 8:28-29. That is, "a user may select
any desired event triggering subsystem and any desired responsive
subsystem," where the triggering and responsive subsystems may be the
same or different. Id. at 10:3-6. Thus, the configuration of the user
interface "enable[ s] a user to modify the relationships between different
subsystems in the surgical console, thereby customizing subsystem
responses and permitting a user to tailor the console to his or her own
preferences" and "to control and operate the console in ways that were not
conceived or considered during design of the console." Id. at 6:26-30.
The user interface may display a matrix or table which "include[ s] one
or more selectable triggering events ... identifying a subsystem condition
that selectively occurs during a surgical procedure performed with the
surgical system" and "a plurality of selectable responses to the one or more
selectable triggering events" to be performed by a selected responsive
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subsystem. Id. at 3:4--8. For example, if the user selects the fluidics
subsystem as the event triggering subsystem, triggering events may include
full occlusion, occlusion break, or vacuum pressure exceeding or falling
below a preset threshold. Id. at 10:21-24. Similarly, if the user selects the
ultrasonic generator as the responsive subsystem, the selectable responses
include an adjust power option, an adjust timing option, and a deliver pulse
option. Id. at 10:28-31.
Finally, "the user interface further includes one or more selectable
ending criteria for one or more of the plurality of selectable responses ...
[which] identify conditions for ending the response to the triggering event
and resuming control of the subsystems based on the preprogrammed
relationships." Id. at 3:11-14.
STATEMENT OF THE CASE
Claims 1, 4--6, 8, and 21-35 are on appeal; claims 2, 3, 7, and 9-20
have been canceled. Claim 1 is the sole independent claim, and each of
dependent claims 4--6, 8, and 21-3 5 depends directly from claim 1.
Claim 1 is representative and reads as follows:
1. A graphical user interface presented on a system
display screen, the graphical user interface comprising:
a representation listing, shown on the display screen, of
at least two of a plurality of subsystems of a surgical system,
the representation listing configured for a user to select, through
user interaction with the graphical user interface, a desired
event triggering subsystem representation and a desired
responsive subsystem representation;
a plurality of user-selectable triggering event
representations shown on the display screen, each of the
plurality of user-selectable triggering event representations
identifying a subsystem condition that occurs during a surgical
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procedure performed with the surgical system, the plurality of
user-selectable triggering event representations configured for
the user to select, through user interaction with the graphical
user interface, a user-selected triggering event; and
a plurality of user-selectable response representations,
shown on the display screen, to the plurality of user-selectable
triggering event representations, the plurality of user-selectable
response representations configured for the user to select,
through user interaction with the graphical user interface, a
user-selected response representation, the user-selectable
response representations representing user-selectable subsystem
responses to perform when the user-selected triggering event is
detected, wherein the user-selectable subsystem responses
deviate from preprogrammed relationships between subsystems
of the surgical system;
one or more user-selectable ending criteria
representations, shown on the display screen, for one or more of
the plurality of user-selectable response representations, the one
or more user-selectable ending criteria representations
configured for the user to select, through user interaction with
the graphical user interface, a user-selected ending criteria, the
ending criteria representations identifying one or more
conditions for ending the user-selected response to the user-
selected triggering event and resuming control of the
subsystems based on the preprogrammed relationships,
wherein user interaction with the graphical user interface
comprises the user selecting a graphical representation on the
graphical user interface through a surgical system input device.
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The claims stand rejected as follows:
Claims 1, 4--6, 8, and 21-35 under 35 U.S.C. § 101 as directed to
patent-ineligible subject matter;
Claims 1, 4, 5, 8, 22, 23, 27-29, 31, 34, and 35 under pre-AIA 35
U.S.C. § I03(a) as unpatentable over Donofrio2 and Boukhny; 3 and
Claims 6, 21, 24--26, 30, 32, and 33 as unpatentable over Donofrio,
Boukhny, and Scheller. 4
SUBJECT MATTER ELIGIBILITY
Issue
The issue raised by this rejection is whether the preponderance of the
evidence supports the Examiner's finding that claims 1, 4--6, 8, and 21-35
are directed to patent-ineligible subject matter.
Principles of Law
An invention is patent-eligible if it claims a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. §101. The
Supreme Court, however, has held that "[l]aws of nature, natural
phenomena, and abstract ideas" are not patentable under 35 U.S.C. § 101.
See, e.g., Alice Corp. v. CLS Banklnt'l, 573 U.S. 208,216 (2014).
2 Donofrio et al., US Patent Application Publication 2008/0177152 Al,
published July 24, 2008.
3 Boukhny et al., US Patent Application Publication 2006/0248477 Al,
published November 2, 2006.
4 Scheller et al., U.S. Patent No. 4,933,843, issued June 12, 1990.
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In determining whether a claim falls into an excluded category, we are
guided by the Supreme Court's two-step framework, described in Mayo and
Alice. 573 U.S. 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 the claim is "directed to." See Alice, 573 U.S. 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. Kappas, 561 U.S. 593, 611 (2010) ("Claims 1 and 4
in petitioners' application explain the basic concept of hedging.").
Patent-ineligible abstract ideas 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 (Gottschalkv. Benson,
409 U.S. 63, 69 (1972)). In contrast, patent-eligible inventions include
physical and chemical processes, such as "molding rubber products"
(Diamond v. Diehr, 450 U.S. 175, 192 (1981)); "tanning, dyeing, making
waterproof cloth, vulcanizing India rubber, smelting ores" (id. at 184 n.7
(quoting Corning v. Burden, 56 U.S. 252, 267---68 (1854))); 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
Supreme Court held that "[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula." Diehr, 450 at 176; 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.").
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Nevertheless, the Supreme 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. (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 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
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. ( 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 USPTO recently published revised guidance on the application of
§ 101. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (January 7, 2019) ("Memorandum"). 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); and
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(2) additional elements that integrate the judicial exception into
a practical application (see MPEP §2106.0S(a}-(c), (e}-(h)).
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.
See Memorandum.
Analysis
The Examiner rejected claims 1, 4---6, 8, and 21-35 as directed to
patent-ineligible subject matter. According to the Examiner, "the claims are
directed to a judicial exception" (Ans. 3), specifically, "an abstract idea
since they are exploiting mathematical computations" (id. at 4, emphasis
omitted). The Examiner acknowledges that "the claims set forth a 'graphical
user interface', 'surgical system', [and a] 'display screen"' (id. at 13), but
contends that "these elements individually or in combination, do not add
significantly more to the abstract idea because they are merely a generic
computer system to perform the abstract idea with a display attachment (i.e.
'display screen') which is a well-known device in order to display data" (id.,
emphasis omitted).
We do not agree that the claims are directed to a patent-ineligible
abstract idea. Claim 1, the sole independent claim, is directed to a system
comprising a graphical user interface and a display screen. The system
comprises a machine and, therefore, the claim is nominally directed to a
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statutory category of invention. Moreover, we agree with Appellant that
"the claims do not recite a mathematical formula" and "[ n Jo mathematical
formula is evident from the claimed graphical user interface and the
Examiner has not provided any reasoning to support his assertion that the
claims are directed to a mathematical formula." Br. 5. Nor has the
Examiner established that the claims are directed to any other group of
abstract ideas, such as a method of organizing human activity or a mental
process.
Furthermore, even if we agreed with the Examiner that claim 1
"exploit[ s] mathematical computations," we determine that the claim
integrates any such mathematical computations into a practical application.
In particular, the claimed device is configured to allow a user to select a
triggering event associated with a user-selected subsystem of a surgical
system, and to select a particular subsystem response to the triggering event,
such that the user can "deviate from preprogrammed relationships between
subsystems of the surgical system." See claim 1.
Accordingly, a preponderance of the evidence does not support the
Examiner's finding that the claims are directed to patent-ineligible subject
matter. The rejection of claims 1, 4---6, 8, and 21-35 under 35 U.S.C. § 101
as directed to patent-ineligible subject matter is reversed.
OBVIOUSNESS
Claims 1, 4, 5, 8, 22, 23, 27-29, 31, 34, and 35 stand rejected as
unpatentable over Donofrio and Boukhny, and claims 6, 21, 24--26, 30, 32,
and 33 stand rejected as unpatentable over Donofrio, Boukhny, and Scheller.
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Overview of Donofrio
Donofrio discloses a conscious sedation system comprising a
controller and a response testing apparatus. The controller may include an
input (e.g., a touch screen) and text-to-speech software that generates an
audible request or other message to a patient. For instance, a personalized
message may address a sedated, but conscious patient by name, and instruct
the patient how to respond to audible, tactile, or other stimulation during a
medical procedure. Donofrio ,r,r 146, 14 7. The controller input may also
include a microphone to allow, inter alia, a specific person to record a
message for the patient. Id. at ,r 148. Finally, the response testing apparatus
allows the patient to generate and/ or communicate a response to the
controller. Id. at ,r 146.
Overview of Boukhny
Boukhny discloses "a user interface for an ocular surgical system,
such as phacoemulsification and vitreo-retinal surgical systems, [which]
includes a display element and a window that are displayed on the display
screen." Boukhny ,r 13. According to Boukhny, the user interface is an
improvement on previously "known user interfaces [that] include buttons,
arrows, switches, bars and/or knobs for setting desired numeric values of
operating characteristics of the surgical system. Id. ,r 6.
The display element includes a representation of a parameter of
pulses generated by the ocular surgical system relative to a
position of [a] controller. The window is generated in response
to touching the display screen. The window includes a display
element that has a representation of the parameter of the pulses
relative to the position of the controller and an adjustment
element for changing a value of the parameter that is
represented in the display element in the window. A current
representation of the parameter displayed in the window is
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changed to a different representation of the parameter in
response to touching the display screen at the window. A value
of the parameter is changed by touching the display screen at
the adjustment element. After the user has adjusted the
parameter, the window can be closed by touching the display
screen at a pre-defined area of the window.
Id. ,I 13.
Alternatively,
The display element includes a representation of a parameter of
the pulses relative to a position of the foot pedal. The window
is generated in response to touching the display screen of the
system. The window includes a display element having a
representation of the parameter of the pulses relative to the
position of the controller and an adjustment element for
changing a value of the parameter represented in the display
element. At least three representations of the parameter are
sequentially displayed in the display element in the window by
touching the display screen at the display element in the
window. This allows a user to scroll through the
representations. The representation that is displayed in the
display element in the window is the selected representation of
the parameter. A value of the parameter is changed by touching
the display screen at the adjustment element. After the
parameter is adjusted, the window is closed by touching the
display screen at a pre-defined area of the window.
Id. ,I 14.
Analysis
With respect to claim 1, the Examiner contends that Donofrio
discloses "a graphical user interface (input 712) presented on a system
display screen (par. 0024-touch screen)." Ans. 5. According to the
Examiner:
[Donofrio' s] representation, shown on the display screen,
listing of at least two of a plurality of subsystems of a surgical
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system, ( - monitors of blood pressure, blood oxygen saturation,
etc., touch screen which displays information) [is] configured
for a user to select, through user interaction with the graphical
user interface, a desired event triggering subsystem
representation and a desired responsive subsystem
representation (par. 0052).
Ans. 5 ( citing Donofrio ,r 52).
The Examiner acknowledges that Donofrio fails to disclose any other
limitation of claim 1. That is, the Examiner contends that Donofrio
discloses the preamble and first clause of claim 1, but acknowledges that
Donofrio fails to disclose any other limitation of the claim, starting with "a
plurality of user-selectable triggering event representations" and ending with
"system input device." Ans. 6.
The Examiner cites Boukhny as disclosing a graphical user interface
for an ocular surgical system with a window that includes:
[A] display element having a representation of the parameter of
the pulses relative to the position of the controller and an
adjustment element for changing a value of the parameter
represented in the display element. At least three
representations of the parameter are sequentially displayed in
the display element in the window by touching the display
screen at the display element in the window. This allows a user
to scroll through the representations. The representation that is
displayed in the element in the window is the selected
representation of the parameter. A value of the parameter is
changed by touching the display screen at the adjustment
element. After the parameter is adjusted, the window is closed
by touching the display screen at a pre-defined area of the
window.
Ans. 7 ( quoting Boukhny ,r 14; Examiner's emphasis omitted).
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The Examiner concludes:
It would have been obvious to one skilled in the art at the
time of the invention to have further modified Donofrio to
include the user-selected triggering events and representations
as disclosed by Boukhny in order to being able to quickly adjust
pulse parameters in an understandable manner also simplifies
setting up the equipment, reduces operation costs and improve
safety (see Boukhny, col. 3, lines 19-23[5J).
Ans. 8.
Appellant contends that neither Donofrio nor Boukhny teaches "a
representation listing ... of at least two of a plurality of subsystems of a
surgical system, the representation listing configured for a user to select,
through user interaction with the graphical user interface, a desired event
triggering subsystem representation and a desired responsive subsystem
representation," as recited in the first clause of claim 1. Br. 6. Appellant
further contends that paragraph 52 of Donofrio, relied on by the Examiner
for those limitations, "is directed primarily to unique identifiers for RF
transmitters and appears to be wholly unrelated to graphical user interfaces."
Id. ( emphasis omitted).
Appellant contends that "Donofrio and Boukhny also do not teach at
least 'user-selectable triggering event representations', 'user-selectable
response representations', and 'user-selectable ending criteria' as recited in
claim 1." Id. at 7 ( emphases omitted). Appellant stresses that claim 1
requires that the plurality of user-selectable triggering event representations
identify a subsystem condition that occurs during a surgical procedure
performed with the surgical system, and that the user-selectable response
5 This appears to be a citation to paragraph 11 of Boukhny.
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representations represent user-selectable subsystem responses to perform
when the user-selected triggering event is detected. Id. Appellant contends
that "Boukhny's dropdown menu" does not meet claim 1 's requirement for
these elements because Boukhny' s "parameter values are specifically for
'the parameter of the pulses relative to the position of the controller' ...
which is a fixed relationship in the Boukhny graphical user interface." Id.
( emphases omitted) ( citing Boukhny ,r 14 ).
Essentially, Appellant's position is that neither Donofrio nor Boukhny
discloses a graphical user interface with representations of surgical
subsystems, triggering events associated with the surgical subsystems, and
subsystem responses to the triggering events-where the configuration of
the representations on the graphical user interface allows a user to select a
subsystem response to a triggering event that deviates from preprogrammed
relationships between subsystems. Br. 6-7.
In response, the Examiner contends that:
[T]he claim provide[ s] a display screen that display[ s]
representations configured to be selected by a user. As an
apparatus claim, the structural element (in this case the display
screen) is configured to perform the functional elements in the
claim. The prior art, needs to be merely capable of performing
the functions of the claim, as Donofrio does.
Ans. 15 ( original emphasis omitted; new emphasis added).
We are not persuaded that the Examiner has established that the
teachings of Donofrio and Boukhny, even if combined as proposed by the
Examiner, teach or suggest a graphical interface configured as required by
the claims.
First, we agree with Appellant that paragraph 52 of Donofrio--
although it contains the words "triggered" and "triggering"-is unrelated to
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graphical user interfaces, or user-selectable triggering event representations.
Paragraph 52 merely discloses "a proximity-triggered unique identifier
imposed" when an RF transmitter and RF receiver are brought into
proximity to each other. See Donofrio ,r 52. We further agree with
Appellant that the Examiner has not established that Donofrio teaches user-
selectable triggering event representations, user-selectable response
representations, and user-selectable ending criteria, as recited in claim 1.
Nor do we find paragraphs 147 and 148 of Donofrio------cited in response to
Appellant's argument on page 4 of the Answer-to be relevant to the
claimed subject matter, as the disclosed input and controller relate to audible
communication with a sedated, but conscious patient, rather than surgical
subsystems.
Boukhny, on the other hand, discloses a graphical user interface for an
ocular surgical system that "includes a display element and a window that
are displayed on the display screen," where "[t]he display element includes a
representation of a parameter of pulses generated by the ocular surgical
system relative to a position of the controller" or "foot pedal." (Boukhny
,r,r 13, 14). "A value of the parameter is changed by touching the display
screen at the adjustment element." Id. Thus, we agree with the Examiner's
finding that Boukhny discloses a user interface with representations of
surgical subsystems and responses. Nevertheless, we do not agree that
Boukhny-alone, or in combination with Donofrio----teaches or suggests a
graphical user interface configured as required by claim 1.
The Federal Circuit has held that "configured to" is analogous to
"made to," "adapted to," and "designed to." In re Man Mach. Interface
Techs. LLC, 822 F.3d 1282, 1286 (Fed. Cir. 2016). In other words,
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"configured to" has a narrower meaning than "capable of." Claim 1 requires
a graphical user in interface with, inter alia, representations "configured for
the user to select ... a user-selected response representation ... representing
user-selectable subsystem responses to perform when [a] user-selected
triggering event is detected wherein the user-selectable subsystem responses
deviate from preprogrammed relationships between subsystems of the
surgical system." Thus, we find that a person of ordinary skill in the art
would understand that the claimed graphical user interface is specially
designed to accomplish the specific purpose recited in the "configured"
clauses of claim 1-i.e., it is specially designed to enable a user to select
subsystem responses that deviate from preprogrammed relationships
between subsystems of the surgical system. See Aspex Eyewear, Inc. v.
Marchan Eyewear, Inc., 672 F.3d 1335, 1349 (Fed. Cir. 2012) (using the
terms "designed to" and "configured to" as "to accomplish a specific
purpose"); see also In re Giannelli, 739 F.3d 1375, 1379 (Fed. Cir. 2014)
(accord).
Appellant argues persuasively that Boukhny's representations of
"parameter values are specifically for 'the parameter of the pulses relative to
the position of the controller,"' and are in "a fixed relationship in the
Boukhny graphical user interface." Br. 7 ( emphases omitted) ( citing
Boukhny ,r 14). We agree with Appellant that the Examiner has not
established that the cited art teaches or suggests a graphical user interface
configured to enable the user to select subsystem responses that deviate from
preprogrammed relationships between subsystems of the surgical system, as
required by claim 1, and dependent claims 4, 5, 8, 22, 23, 27-29, 31, 34, and
35.
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We reverse the rejection of claims 1, 4, 5, 8, 22, 23, 27-29, 31, 34,
and 35 as unpatentable over Donofrio and Boukhny, and the rejection of
claims 6, 21, 24--26, 30, 32, and 33 as unpatentable over Donofrio, Boukhny,
and Scheller.
SUMMARY
The rejection of claims 1, 4--6, 8, and 21-35 under 35 U.S.C. § 101 as
directed to patent-ineligible subject matter is reversed;
The rejection of claims 1, 4, 5, 8, 22, 23, 27-29, 31, 34, and 35 under
35 U.S.C. § 103 as unpatentable over Donofrio and Boukhny is reversed;
and
The rejection of claims 6, 21, 24--26, 30, 32, and 33 under 35 U.S.C.
§ 103 as unpatentable over Donofrio, Boukhny, and Scheller is reversed.
REVERSED
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