Ex Parte Vdovjak et alDownload PDFPatent Trial and Appeal BoardAug 22, 201613132951 (P.T.A.B. Aug. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/132,951 06/06/2011 Richard Vdovjak 24737 7590 08/24/2016 PHILIPS INTELLECTUAL PROPERTY & STANDARDS 465 Columbus A venue Suite 340 Valhalla, NY 10595 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. 2008P01103WOUS 9283 EXAMINER LULTSCHIK, WILLIAM G ART UNIT PAPER NUMBER 3626 NOTIFICATION DATE DELIVERY MODE 08/24/2016 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): marianne.fox@philips.com debbie.henn@philips.com patti. demichele@Philips.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD VDOVJAK and ANCA IOANA DANIELA BUCUR Appeal2014-003489 Application 13/132,951 1 Technology Center 3600 Before HUBERT C. LORIN, BART A. GERSTENBLITH, and BRUCE T. WIEDER, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner's rejection of claims 1, 2, 4, 6, 8-17, and 21-26. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER Appellants' claimed invention relates generally to a method "to reconcile records in a healthcare environment." (Spec., Abstract.) 1 According to Appellants, the real party in interest is Koninklijke Philips Electronics, N.V. (Appeal Br. 1.) Appeal2014-003489 Application 13/132,951 Claim 1 is illustrative and is reproduced below (emphasis added): 1. A method of reconciling customer records between a plurality of sites comprising: assigning a unique record number to a customer record with one or more processors; with the one or more processors, retrieving demographic information for a customer record to match said demographic information against demographic information in a collection of records in other systems to find records that belong to the same customer stored in a database; comparing the customer record demographic information with at least one other record demographic information in the collection of records in at least one other system to derive a likelihood ratio for each compared record with the one or more processors; comparing each likelihood ratio to a defined accept threshold and to a defined reject threshold with the one or more processors, the comparing including: rejecting the compared customer records if the likelihood ratio falls below a reject threshold ratio; accepting the compared customer records if the likelihood ratio falls above an accept threshold ratio; and identifying the customer records for a manual review if the likelihood ratio falls between the accept threshold and the reject threshold; attaching an assertion for the compared customer records based on at least one likelihood ratio comparison with the one or more processors; with the one or more processors, placing the customer records to be manually reviewed on an exceptions list and distributing the exception list electronically to the plurality of sites; and recording a determination of an accept or reject results made by manual review at each relevant site. 2 Appeal2014-003489 Application 13/132,951 REJECTIONS2 Claims 1, 2, 4, 6, 8, 9, 11-17, and 22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rotter (WO 03/021485 A2, pub. Mar. 13, 2003) and Borthwick (WO 01/22285 A2, pub. Mar. 29, 2001). Claims 10 and 21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rotter, Borthwick, and Ross (US 5,823,948, iss. Oct. 20, 1998). Claims 23-26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Rotter and Lepien (US 6,636,850 B2, iss. Oct. 21, 2003). Claim 1 is provisionally rejected for nonstatutory obviousness-type double patenting as unpatentable over claims 1 and 14 of copending U.S. Patent Application No. 13/132,949 ("the '949 application") and Lepien. Claim 15 is provisionally rejected for nonstatutory obviousness-type double patenting as unpatentable over claim 10 of the '949 application and Lepien. ANALYSIS Claims l, 2, and 11-14 In response to the rejection of claim 1 under§ 103, Appellants argue that Rotter "does not teach placing the records to be manually reviewed on an exception list and distributing the exception list to the relevant sites, and 2 A rejection of claims 1, 2, 4, 6, and 8-14 under 35 U.S.C. § 112, second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter the inventor regards as the invention, and a rejection of claims 22 and 24 under 35 U.S.C. § 112, first paragraph, for failure to comply with the written description requirement were withdrawn in the Advisory Action mailed June 10, 2013. 3 Appeal2014-003489 Application 13/132,951 recording a determination of an accept or reject result made by manual review at each relevant site." (Appeal Br. 10.) Specifically, Appellants argue that "Rotter does not teach the entire list of records to be reviewed being distributing [sic] to a plurality of sites." (Id.) Rotter discloses a method for "identifying first and second records and applying record matching criteria to compare data element content of the ... records to determine commonality data" and, if commonality is found, merging the records. (Rotter, Abstract.) Rotter further discloses that users may manually determine if the records should be merged and that a record set may be sent to multiple users to make the determination. (See Rotter 12, Fig. 6.) "A user also employs the Figure 10 comparison menu to assign a user determinable status to a record set using item 734. Such status may indicate 'Not enough information', 'Needs review by a supervisor', or 'To be merged'," or "Mark Not Duplicate." (Rotter 13, Fig. 10.) We agree with the Examiner's findings with regard to "Argument A" on pages 18-20 of the Answer. Specifically, we agree that "Rotter specifies on page 12 that an administrator may assign records to users via icons such as the one shown in Figure 5 element 51 O" and that under a broadest reasonable interpretation, the term "'site' may encompass locations such as facilities, departments, or any other individual location. A 'site' would therefore include an individual terminal at which a user is assigned to match and merge records." (Answer 19.) Appellants do not persuasively argue why the Examiner's interpretation of "site" is not correct. We also agree with the Examiner that records to be manually reviewed as "described on page 12 [of Rotter] and as shown in Figure 6 ... may be interpreted as being placed on an exceptions list." (Id.) We also 4 Appeal2014-003489 Application 13/132,951 agree with the Examiner that "assigning a user determinable status as to whether records should be merged ... may be reasonably interpreted as reject or accept determinations." (Id.) We also agree with the Examiner that the claim does not recite reviewing "the entire list of records," as argued by Appellants. (See id.; see also Appeal Br. 10.) Regardless, if the entire list of customer records to be reviewed consisted of only one set of customer records, Rotter teaches reviewing such records. (See Rotter 13.) Therefore, we are not persuaded that the Examiner erred in rejecting claim 1 under§ 103. Claims 2 and 11-14 depend from claim 1 (see Appeal Br. 11) and are not separately argued. Thus, they fall with claim 1. Claim 4 Claim 4 depends from claim 2. Claims 2 and 4 recite: 2. The method according to claim 1, further including: making a positive assertion in response to a recorded accept result, the positive assertion asserting that the t\'l/O compared records are related to the same customer; or making a negative assertion in response to a recorded reject result, the negative assertion asserting that the two compared records are not related to the same customer. 4. The method according to claim 2, wherein the assertions for a pair of records are made at a plurality of sites. Appellants argue that Rotter "does not teach or suggest assertions being made for a pair of records" or that "the various users are located at various sites." (Appeal Br. 11.) Specifically, Appellants argue that merging 5 Appeal2014-003489 Application 13/132,951 records, as taught by Rotter, "is not the same as making assertions." (Reply 3.) We agree with the Examiner's finding that "[o]n page 13, paragraph 3, Rotter discloses a user initiating the merging of two records after determining that the records correspond to the same person (i.e., an accept decision)." (Answer 20.) Additionally, as discussed above, Rotter discloses in Figure 10 that a compared pair of records may be marked as not being duplicates, i.e., a reject decision. Appellants do not persuasively argue why so designating pairs of records "is not the same as making assertions." (See Reply 3.) Also, for the reasons discussed above, Appellants' argument that Rotter does not teach various users located at various sites is not persuasive. Therefore, we affirm the rejection of claim 4 under § 103. Claims 6 and 8 Claim 6 recites: "The method of claim 2, wherein the assertions are recorded in lists of assertions." Claim 8 recites: "The method of claim 2, wherein the assertions are stored in a database in at least one of a central repository and a plurality of sites." The Examiner finds that "Rotter describes recording assertions as whether or not two records correspond to the same patient" and that "Borthwick describes manually marking each record pair on a list of possibly linked records with an assertion as to whether the pair should be linked." (Final Action 8, citing Borthwick, p. 20, 11. 24--26.) Additionally, the Examiner finds that Rotter discloses storing assertions in a central repository. (Id., citing Rotter 13, Fig. 2.) Specifically, element 217 in 6 Appeal2014-003489 Application 13/132,951 Figure 2 shows a "Clinical Data Repository." (Rotter, Fig. 2.) Appellants do not persuasively argue why the Examiner's finding is in error. Moreover, the Examiner determines that in view of Rotter and Borthwick [i]t would have been obvious to one of ordinary skill in the art at the time the invention was made to arrange sets of manually generated assertions into lists in order to simplify the process of marking each record for the human analysts and to make it easier for analysis to visually track which records have assertions associated with them. (Final Action 8.) Appellants argue that Rotter teaches merging records into a single record and, thus, does not record assertions. (Appeal Br. 12.) But Rotter also teaches to "Mark Not Duplicate" a pair of compared records, i.e., Rotter teaches recording at least negative assertions. (See Rotter, Fig. 10.) Appellants further argue that "[t]he manual annotation described in Borth\'l1ick relates to generating a training or testing corpus" and that this training corpus "does not distinguish between decisions made at different sites." (Appeal Br. 12.) But neither claim 6 nor 8 recite distinguishing between decisions made at different sites. Moreover, Appellants attack Rotter and Borthwick individually. Nonobviousness is not established by attacking references individually when the rejection is based, as here, on a combination of references. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). A reference "must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole." Id. 7 Appeal2014-003489 Application 13/132,951 Therefore, we are not persuaded that the Examiner erred in rejecting claims 6 and 8 under § 103. Claims 9 and 10 Claim 9 recites: "The method of claim 2, wherein the step of making the acceptance or rejection assertion is performed at a plurality of user sites and further including: notifying the user sites when two sites make conflicting assertions about a common record." Appellants argue that Rotter "does not teach resolving the customer records with multiple users let alone notifying the user sites when two sites make conflicting assertions about a common record." (Appeal Br. 13.) Rotter discloses that "records falsely identified as being potential duplicate records that are in fact associated with different patients are indicated as being different records by data entry in a designated record table. This table is checked during subsequent record matching to prevent repetition of such a false positive match." (Rotter 6.) The Examiner finds that "[t]his record table ... is sent to the other sites, including at least the algorithm site" and that "[i]n the event that a user at a different site attempts to indicate that the two records correspond to the same patient, the table will prevent the error." (Final Action 9.) Claim 9 specifies no time period between making the conflicting assertions. In Rotter, after a record pair is falsely identified as being duplicative, Rotter makes a table entry of the error such that when a user attempts to make the same error, the algorithm checks the table and the relevant table entry prevents the error. In other words, under the scenario proposed by the Examiner, a first user identifies a record pair as duplicative, a table entry is 8 Appeal2014-003489 Application 13/132,951 set, and a second user makes the same false identification, i.e., the conflict is between the table entry and the user. Although the Examiner finds that the algorithm that identifies duplicative record pairs is a user (see id.), the Examiner does not find that the table entry is a user. Thus, we are persuaded that the Examiner erred in rejecting claim 9 under§ 103. Claim 10 depends from claim 9. Therefore, for the reasons discussed with regard to claim 9, we are persuaded that the Examiner erred in rejecting claim 10 under§ 103.3 Claims 15 and 16 Claim 15 recites: 15. An apparatus for reconciling customer records compnsmg: a [sic] input device which receives an input customer record and accompanying demographic data; a database which stores customer records and accompanying demographic data; one or more processors which: derive a unique customer record number from the demographic data; compare at least one customer record demographic data of at least one customer record with other record demographic data in a collection of records to derive a likelihood ratio for each compared record; compare each likelihood ratio to a defined accept threshold and to a defined reject threshold and performing one of: rejecting the at least one customer record if the likelihood ratio falls below a reject threshold; and 3 Claim 10 depends from claim 9. Appellants do not separately argue claim 10 and indicate that claim 10 stands or falls with claim 1. (See Appeal Br. 11.) However, in view of our decision reversing the rejection of claim 9, we also reverse the rejection of claim 10. 9 Appeal2014-003489 Application 13/132,951 accepting the at least one customer record if the likelihood ratio falls above an accept threshold; and identifying the at least one customer record for a manual review if the likelihood ratio falls between the accept threshold and the reject threshold; and recording in a central repository whether the at least one customer record was rejected, accepted, or identified for manual review and recording whether an assertion is made by an institution concerning a pair of the customer records. Appellants argue that Rotter does not teach: 1) "recording an assertion which is made by an institution concerning a pair of customer records," 2) "recording the assertion made by the various users," and 3) "recording an assertion which is made by an institution concerning a pair of customer records and enable participating sites to independently decide whether the relevant records submitted for manual review belong to the same patient." (ii .. ppeal Br. 14.) With regard to argument 1, for the reasons discussed above with regard to claims 6 and 8, we are not persuaded of error. With regard to arguments 2 and 3, claim 15 does not recite "recording the assertion made by the various users" nor "recording an assertion which is made by an institution concerning a pair of customer records and enable participating sites to independently decide whether the relevant records submitted for manual review belong to the same patient." (See id.; see also Claim 15.) These arguments are not commensurate with the scope of the claim and, thus, are not persuasive of error. Claim 16 depends from claim 15. Appellants do not separately argue claim 16. Therefore, claim 16 falls with claim 15. 10 Appeal2014-003489 Application 13/132,951 Claims 17 and 21 Claim 17 depends from claim 16. Claims 16 and 17 recite: 16. The apparatus according to claim 15, wherein the assertion is defined as positive if the two compared records are determined to be related to the same customer; and the assertion is defined as negative ifthe two compared records are determined not to be related to the same customer. 17. The apparatus according to claim 16, wherein a user of a user group performs at least one of: assessing the records and assertions stored in the central repository and notifying when two conflicting assertions are made about one record. Appellants argue that claim 17 "calls for assessing the records and assertions stored in the central repository and notifying when two conflicting assertions are made about one record." (Appeal Br. 15.) Although Appellants correctly quote the majority of claim 17, they omit that the claim only requires "at least one of assessing the records and assertions stored in the central repository and notifying when two conflicting assertions are made about one record" (emphasis added). Claim 17 does not require performing both assessing and notifying. Appellants' argument, that both are required, is not commensurate with the scope of the claim and, thus, is not persuasive. Moreover, as discussed above with regard to claims 1, 6, and 8, Rotter teaches assessing records and assertions stored in a central repository. (See, e.g., Rotter 12-13, Fig. 2.) 11 Appeal2014-003489 Application 13/132,951 Therefore, we are not persuaded that the Examiner erred in rejecting claim 17 under § 103. Claim 21 depends from claim 17. Appellants do not separately argue claim 21. Therefore, claim 21 falls with claim 17. Claim 22 Claim 22 recites: 22. The apparatus according to claim 15, further including: a plurality of the input devices and the database disposed at a plurality of medical facilities; a plurality of site specific databases at the plurality of medical facilities; a group database accessible from the plurality of medical facilities; and wherein the one or more processors are configured to place the manually reviewed records in a group specific exception list in the group database and a site specific exceptions list in at least one of the plurality of site specific databases. Appellants argue that "Rotter does not teach a group specific exception list and a site specific exceptions list. Specifically, Rotter does not teach or suggest an exception list in at least one of the plurality of site specific databases." (Reply Br. 7.) Appellants also argue that "Borthwick does not teach distributing the exception list to the relevant sites, and recording a determination of an accept or reject result made by manual review at each relevant site." (Appeal Br. 16.) The Examiner finds, and we agree, that Rotter teaches "a group database accessible by sites." (Final Action 14, citing Rotter Fig. 2.) The Examiner also finds, and we agree, that Rotter "teaches a plurality of site specific databases in [discussing] the background to the invention." (Id., citing Rotter 2.) The Examiner then determines that 12 Appeal2014-003489 Application 13/132,951 it would have been obvious to one of ordinary skill in the [art] at the time of invention to combine the system of Rotter with the plurality of site specific databases taught in the known prior art of its system since each individual element and its function are shown in the prior art, and although shown in separate references, the difference between the claimed subject matter and the prior art rests not on any individual element or function but in the very combination itself. That is, in the substitution of a plurality of site specific databases as disclosed as prior art for the central database of the system itself. Thus, the simple substitution of one known element for another producing a predictable result renders the claim obvious. (Id. at 14--15.) As discussed above, a reference "must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole." In re Merck & Co., 800 F.2d at 1097. Here, the Examiner determines that the claimed invention would have been obvious in view of the combination of the disclosure of the invention of Rotter with the "site specific databases taught in the knov,rn prior art of [Rotter's] system." (Final 1A .. ction 14.) Appellants do not persuasively argue why the Examiner's suggested combination would not have been obvious. Therefore, we are not persuaded that the Examiner erred in rejecting claim 22 under§ 103. Claims 23, 25, and 26 Claim 23 recites: 23. A system for matching customers records between a plurality of sites, the system including: a global exception list containing a plurality of entries, each entry containing a plurality of local patient identifiers referencing a plurality of the customer records that potentially match; 13 Appeal2014-003489 Application 13/132,951 a global assertion list which stores a list of assertions of matching or non-matching records of said plurality of records, represented by said patient identifiers; one or more processors which distribute the global exception list and the global assertion list to the plurality of sites, taking into account locally relevant information; wherein each one of the plurality of sites includes one or more processor programmed to: resolve the local exception list of the one of the plurality of sites by making assertions about matches or non-matches for potentially matching customers [sic] records in the local exception list; and propagate said assertions into the global assertion list. Appellants argue that Rotter does not teach each one of the plurality of sites resolving the local exception list of the one of the plurality of sites by making assertions about matches or non-matches for potentially matching customers [sic] records in the local exception list and propagate said assertions into the global assertion list. (Appeal Br. 17.) Appellants do not explain why the "local exception list" does not include a record pair such as that shown in Figure 10 of Rotter. (See Final Action 17.) Moreover, Figure 10, as discussed above, discloses that a compared pair of records may be marked as not being duplicates, i.e., a reject decision, made by the user at one of a plurality of sites, with that decision being propagated back to the record table. (See Rotter, Fig. 10; see also id. at 6, 13.) Appellants further argue that "Rotter does not teach the entire list of records to be reviewed being distributing [sic] to a plurality of sites." (Appeal Br. 17.) However, claim 23 does not recite that the entire list of records must be distributed to a plurality of sites. Regardless, as discussed 14 Appeal2014-003489 Application 13/132,951 above, if the entire list of customer records to be reviewed consisted of only one set of customer records, i.e., the records shown in Figure 10, Rotter teaches reviewing such records. (See Rotter 13.) Appellants also argue that "Lepien does not teach or suggest resolving a local exception list of one of the plurality of sites by making assertions about matches or non-matches for potentially matching customers." (Appeal Br. 18.) The Examiner finds, and we agree, that [i]n Column 2 lines 5 through 17 and Column 4 lines 14 through 26, Lepien describes performing a comparison through use of at least one processor of two customer records by applying positive and negative thresholds and determining whether two records are equivalent based on a comparison of accumulators to the thresholds. (Answer 33.) Thus, Lepien resolves the local exception list for that site, e.g., where the list consists of the record pair compared, through use of a processor, by making a determination as to \'l1hether the records match. Therefore, we are not persuaded that the Examiner erred in rejecting claim 23 under § 103. Claims 25 and 26 depend from claim 23. Appellants do not separately argue claims 25 and 26. Therefore, claims 25 and 26 fall with claim 23. Claim 24 Claim 24 recites: "The system according to claim 23, wherein the assertions propagated into the global assertion list indicate that for the particular site that made the assertion, the provided assertion constitutes a local ground truth." 15 Appeal2014-003489 Application 13/132,951 With regard to the term "local ground truth," the Specification states that "[i]ndividual assertions are maintained for every institution, serving as a local ground truth with respect to the institution that issued them, but not necessarily for other institutions." (Spec. 5.) Appellants argue that Rotter "does not teach placing the records to be manually reviewed on an exception list and distributing the exception list to the relevant sites, and recording a determination of an accept or reject result made by manual review at each relevant site which is then stored in a global assertion list." (Appeal Br. 18; see also Reply Br. 8-9.) Claim 24 does not recite "placing the records to be manually reviewed on an exception list." Appellants' argument is not commensurate with the scope of the claim and, thus, is not persuasive of error. Appellants' other arguments have been considered but are not deemed persuasive of reversible error. The provisional obviousness-type double patenting rejections Claims 1 and 15 are provisionally rejected for obviousness-type double patenting. (Final Action 19-25.) Appellants do not address these rejections in the Appeal Brief. Therefore, we summarily affirm the provisional obviousness-type double patenting rejections of claims 1 and 15. DECISION The Examiner's rejections of claims 1, 2, 4, 6, 8, 11-17, and 21-26 under 35 U.S.C. § 103(a) are affirmed. 16 Appeal2014-003489 Application 13/132,951 The Examiner's rejection of claims 9 and 10 under 35 U.S.C. § 103(a) is reversed. The Examiner's provisional rejections of claims 1 and 15 for nonstatutory obviousness-type double patenting are affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a)(l)(iv)(2013). AFFIRMED-IN-PART 17 Copy with citationCopy as parenthetical citation