Klaus Weidenhaupt et al.

Patent Trials and Appeals Board

Jun 9, 2020

12092099 - (D) (P.T.A.B. Jun. 9, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/092,099 04/30/2008 Klaus Weidenhaupt 2005P02861WOUS 8537
24737 7590 06/09/2020
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
NGUYEN, TRANG T
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
06/09/2020 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):
katelyn.mulroy@philips.com
marianne.fox@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 KLAUS WEIDENHAUPT and CHARLES LAGOR
____________

Appeal 2018-008426
Application 12/092,099
Technology Center 3600
____________

Before ANTON W. FETTING, KENNETH G. SCHOPFER, and
ROBERT J. SILVERMAN, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Klaus Weidenhaupt, and Charles Lagor (Appellant2) seeks review
under 35 U.S.C. § 134 of a final rejection of claims 2–18 and 21–23, the

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed May 15, 2018) and Reply Brief (“Reply Br.,” filed August 21,
2018), and the Examiner’s Answer (“Ans.,” mailed June 27, 2018), and
Final Action (“Final Act.,” mailed December 19, 2017).
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only claims pending in the application on appeal. We have jurisdiction over
the appeal pursuant to 35 U.S.C. § 6(b).
The Appellant invented a clinical workflow management and decision
support system and method. Specification 1:8–9.
An understanding of the invention can be derived from a reading of
exemplary claim 21, which is reproduced below (bracketed matter and some
paragraphing added).
21. A method of clinical workflow management and decision
making comprising:
[1] receiving clinical information from a hospital information
system,
the clinical information pertaining to a particular clinical
problem of a patient under consideration;
[2] creating, by a computer processor, a clinical workflow care
plan based on the clinical information, the clinical workflow
care plan comprising:
(i) one or more ideal clinical actions;
and
(ii) a timing for an occurrence of the one or more ideal
clinical actions as a function of the clinical information
and the particular clinical problem;
[3] determining, by the computer processor, previous and
current clinical actions of the clinical workflow care plan;
[4] providing, by the computer processor, a notification based
on a result of the determining;
[5] repeatedly examining whether the current clinical actions
adhere to the clinical workflow care plan;

2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
KONINKLDKE PHILIPS N.V. (Appeal Br. 2).

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[6] determining, based on the repeatedly examining, by the
computer processor, suggested next step information critical to
diagnostic and therapeutic decisions to be made by one or more
healthcare providers in conjunction with treatment of the
particular clinical problem;
[7] determining, based on a Bayesian network model capturing
the causal relationships amongst the clinical information,
probabilities for a set of differential diagnoses;
and
[8] displaying,
via a graphical user interface,
the clinical workflow care plan via a plurality of distinct
interactive display regions, the plurality of distinct
interactive display regions comprising
(i) a differential diagnosis region providing a
representation of the probabilities for the set of
differential diagnoses,
and
(ii) a suggested next step region for providing the
suggested next step information having been
determined to assist with diagnostic and
therapeutic decisions to be made by one or more
healthcare providers,
wherein the suggested next step information
comprises a suggested next action resulting
from a query to a decision support module in
connection with a differential diagnosis of
the differential diagnosis region,
the query configured for finding one or more
suitable diagnostic steps to discriminate
between multiple differential diagnoses.
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The Examiner relies upon the following prior art:
Name Reference Date
Kameda US 6,876,972 B1 Apr. 5, 2005
Karlov US 2003/0065535 A1 Apr. 3, 2003
Shewmake US 2003/0208108 A1 Nov. 6, 2003
Claims 2–18 and 21–23 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Claims 2–9, 12–15, and 21–23 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Shewmake and Karlov.
Claims 10, 11, and 16–18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Shewmake, Karlov, and Kameda.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of obviousness turn primarily on whether the art describes
the claim limitations.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Shewmake
01. Shewmake is directed to managing patient health through an
automated online database, and more particularly, diagnosis and
management of cardiovascular disease and assessment of
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cardiovascular risk factors and providing patient treatment plans.
Shewmake para. 3.
02. Shewmake describes information related to managing the
patient’s cardiovascular health. The cardiovascular disease
(CVD) management system provides for the physician having
electronic access to the infomediary site for receiving patient test
results and entering diagnosis and treatment information to
facilitate the building of a treatment plan. The treatment plan is
created after viewing test results and relevant patient data and
entering any supplemental information including a diagnosis. The
treatment plan may include a recommended diet, prescription (and
nonprescription) drugs, an exercise regimen, and alternate
cardiovascular products that may be available for purchase
through the infomediary site (e.g., blood pressure cuffs to monitor
blood pressure, anti-embolism support hosiery, dietary products,
educational materials, etc.). Portions of the treatment plan are
preferably derived from templates that are provided by the
infomediary site 100. In addition, the infomediary site may
present templates having the most relevant treatment plan
components based in part upon the physician’s previously entered
diagnosis information. Shewmake para. 8.
Karlov
03. Karlov is directed to bioinformatics and, more particularly, to
formulating disease diagnoses from clinical test data. Karlov para.
3.
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04. Karlov describes that a disease condition of a patient is
diagnosed, based on analysis of clinical data for a population of
individuals to whom a set of tests were administered. Next, a
Bayesian statistical analysis is performed to estimate a first
hypothesis-conditional probability density function p(x|H1) where
the hypothesis H1 relates to a diagnosis condition (such as a
disease state or other diagnosis), and to estimate a second
hypothesis-conditional probability density function p(x|H2) where
the hypothesis H2 relates to a non-diagnosis (such as a disease-
free) condition. Next, a prior probability density function p(H) is
determined for the disease hypotheses H1 and H2, and next a
posterior test-conditional probability density function p(H|x) is
determined for each of the hypotheses H1 and H2, and clinical
data records x. With these probability estimates based on the
clinical data, a diagnosis probability of a new patient with test
results x for the H1 disease condition is provided, based on the
determined posterior test-conditional probability density function
p(H1|x) as compared to the posterior test-conditional probability
density function p(H2|x) and one or more test results of the new
patient. This technique represents an application of Bayesian
probability estimation applied to clinical data. This methodology
can be especially useful in identifying inapparent diseases from
the clinical data, such as when screening tests for a disease
condition are not readily available. Karlov para. 9.
05. Karlov describes a key strategy for planning clinical tests in the
multiple-disease diagnostics by the DBA as the use of the
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differential patterns of diseases. These differential patterns show
how any pair of diagnoses differs statistically in the multi-
dimensional space of clinical tests. There is one or another test,
which tells the difference between two diseases (in a probabilistic
sense). Karlov para. 276.
06. Karlov describes identifying differential historic patterns
unique for different diseases. The DBA in the prediction mode
can recognize the abnormal changes in tests of a new patient and
relate the pattern of these changes to the statistical differential
patterns of diseases. Karlov para. 296.
ANALYSIS
Claims 2–18 and 21–23 rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more
STEP 13
Claim 21, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of
those patent-ineligible concepts. If so, we then ask, “[w]hat

3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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else is there in the claims before us? To answer that question,
. . . consider the elements of each claim both individually and
“as an ordered combination” to determine whether the
additional elements “transform the nature of the claim” into a
patent-eligible application. [The Court] described step two of
this analysis as a search for an “‘inventive concept’”—i.e., an
element or combination of elements that is “sufficient to ensure
that the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66 (2012)). To perform this test, we must first determine what the
claims are directed to. This begins by determining whether the claims recite
one of the judicial exceptions (a law of nature, a natural phenomenon, or an
abstract idea). Then, if the claims recite a judicial exception, determining
whether the claims at issue are directed to the recited judicial exception, or
whether the recited judicial exception is integrated into a practical
application of that exception, i.e., that the claims “apply, rely on, or use the
judicial exception in a manner that imposes a meaningful limit on the
judicial exception, such that the claim is more than a drafting effort designed
to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at
54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 21 recites receiving clinical data, creating plan data, determining
clinical action data, providing notification data, repeatedly examining data
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adherence, determining suggested next step data, using a mathematical
Bayesian model4 to determine probability data, and displaying data.
Determining and examining are rudimentary forms of data analysis.
Providing data is transmitting data. Performing probability calculations is a
mathematical concept and data analysis. Thus, claim 21 recites receiving,
creating, analyzing, transmitting, and displaying data. None of the
limitations recite technological implementation details for any of these steps,
but instead recite only results desired by any and all possible means.
From this we see that claim 21 does not recite the judicial exceptions
of either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts5, (2) certain methods of organizing
human activity6, and (3) mental processes7. Among those certain methods

4 The Specification does not describe the nature of a Bayesian model,
referring to such only once and only as being somehow used to capture
results. Spec. 8:2–3. The cited prior art describes Bayesian models as
mathematical models used in statistics.
5 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
6 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
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of organizing human activity listed in the Revised Guidance are managing
personal behavior or relationships or interactions between people. Like
those concepts, claim 21 recites the concept of managing medical treatment.
Specifically, claim 21 recites operations that would ordinarily take place in
advising one to present diagnostic and prescriptive data based on putting
previous treatment and prescriptive data through a mathematical model. The
advice to present diagnostic and prescriptive data based on putting previous
treatment and prescriptive data through a mathematical model in this context
involves displaying a clinical workflow care plan, which is medical
management act, and clinical workflow management and decision making,
which is an act ordinarily performed in the stream of medicine. For
example, claim 21 recites “displaying . . . the clinical workflow care plan,”
which is an activity that would take place whenever one is managing
medical workflow. Similarly, claim 1 recites “clinical workflow
management and decision making,” which is also characteristic of medical
management.
The Examiner determines the claims to be directed to a method of
clinical workflow management and decision making. Final Act. 2.
The preamble to claim 21 recites that it is a method of clinical
workflow management and decision making. The steps in claim 21 result in
presenting diagnostic and prescriptive data based on putting previous
treatment and prescriptive data through a mathematical model absent any
technological mechanism other than a conventional computer for doing so.

7 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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As to the specific limitations, limitation 1 recites receiving data.
Limitations 2–8 recite generic and conventional receiving, creating,
analyzing, transmitting, and displaying of clinical workflow data, which
advise one to apply generic functions to get to these results. The limitations
thus recite advice for presenting diagnostic and prescriptive data based on
putting previous treatment and prescriptive data through a mathematical
model. To advocate presenting diagnostic and prescriptive data based on
putting previous treatment and prescriptive data through a mathematical
model is conceptual advice for results desired and not technological
operations.
The Specification at 1:8–9 describes the invention as relating to a
clinical workflow management and decision support system and method.
Thus, all this intrinsic evidence shows that claim 21 recites managing
medical treatment. This is consistent with the Examiner’s determination.
This in turn is an example of managing personal behavior or
relationships or interactions between people as a certain method of
organizing human activity because medical management is the managing of
interactions among caregivers and patient. The concept of managing
medical treatment by presenting diagnostic and prescriptive data based on
putting previous treatment and prescriptive data through a mathematical
model is one idea for managing such practice. The steps recited in claim 21
are part of how this might conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. Trading Techs. Int’l, Inc. v. IBG
LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (display to help users process
information more quickly); Affinity Labs of Texas, LLC v. Amazon.com Inc.,
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838 F.3d 1266, 1271 (2016) (customizing user interface and tailoring
content).
From this we conclude that at least to this degree, claim 21 recites
managing medical treatment by presenting diagnostic and prescriptive data
based on putting previous treatment and prescriptive data through a
mathematical model, which is managing personal behavior or relationships
or interactions between people, one of certain methods of organizing human
activity identified in the Revised Guidance, and, thus, an abstract idea.
STEP 2A Prong 2
The next issue is whether claim 21 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.8
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At
some level, “all inventions ... embody, use, reflect, rest upon, or
apply laws of nature, natural phenomena, or abstract ideas.”
Thus, an invention is not rendered ineligible for patent simply
because it involves an abstract concept. “[A]pplication[s]” of
such concepts “ ‘to a new and useful end,’ ” we have said,
remain eligible for patent protection. Accordingly, in applying
the § 101 exception, we must distinguish between patents that
claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those
that integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,

8 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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devoid of implementation details. Step 1 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Steps 2 and 4
recite basic conventional data operations such as generating, updating, and
storing data. Step 8 is insignificant post solution activity, such as storing,
transmitting, or displaying the results. Steps 3 and 5–7 recite generic
computer processing and mathematical concepts expressed in terms of
results desired by any and all possible means and so present no more than
conceptual advice. The query recited in step 8 is prefatory to the actual
recited display step and so is aspirational rather than functional, describing
how the displayed data was hoped to have been created. This is outside the
scope of the recited display step. The determining of probabilities step in
limitation 7 refers to somehow using a Bayesian network model to capture
causal relationships amongst clinical information, but does not recite how
this determination is done from the model or how the model is structured or
implemented to achieve such capture. Such a purely functional recitation is
no more than the conceptual idea for using such a model. All purported
inventive aspects reside in how the data is interpreted and the results desired,
and not in how the process physically enforces such a data interpretation or
in how the processing technologically achieves those results.
Viewed as a whole, Appellant’s claim 21 simply recites the concept of
managing medical treatment by presenting diagnostic and prescriptive data
based on putting previous treatment and prescriptive data through a
mathematical model as performed by a generic computer. This is no more
than conceptual advice on the parameters for this concept and the generic
computer processes necessary to process those parameters, and do not recite
any particular implementation.
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Claim 21 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The 13+ pages of specification only spell out
different generic equipment9 and parameters that might be applied using this
concept and the particular steps such conventional processing would entail
based on the concept of managing medical treatment by presenting
diagnostic and prescriptive data based on putting previous treatment and
prescriptive data through a mathematical model under different scenarios.
They do not describe any particular improvement in the manner a computer
functions. Instead, claim 21 at issue amounts to nothing significantly more
than an instruction to apply managing medical treatment by presenting
diagnostic and prescriptive data based on putting previous treatment and
prescriptive data through a mathematical model using some unspecified,
generic computer. Under our precedents, that is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
None of the limitations reflect an improvement in the functioning of a
computer, or an improvement to other technology or technical field, applies
or uses a judicial exception to effect a particular treatment or prophylaxis for
a disease or medical condition, implements a judicial exception with, or uses
a judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim, effects a transformation or reduction of a
particular article to a different state or thing, or applies or uses the judicial
exception in some other meaningful way beyond generally linking the use of

9 The Specification describes a computer, a personal digital assistant, a
cellular telephone, a mobile communications device, or similar device.
Spec. 4:14–16.
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the judicial exception to a particular technological environment, such that
the claim as a whole is more than a drafting effort designed to monopolize
the exception.
We conclude that claim 21 is directed to achieving the result of
managing medical treatment by advising one to present diagnostic and
prescriptive data based on putting previous treatment and prescriptive data
through a mathematical model, as distinguished from a technological
improvement for achieving or applying that result. This amounts to
managing personal behavior or relationships or interactions between people,
which fall within certain methods of organizing human activity that
constitute abstract ideas. The claim does not integrate the judicial exception
into a practical application.
STEP 2B
The next issue is whether claim 21 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is
not enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implement[t]” an abstract
idea “on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption
concern that undergirds our § 101 jurisprudence. Given the
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ubiquity of computers, wholly generic computer
implementation is not generally the sort of “additional
feature[e]” that provides any “practical assurance that the
process is more than a drafting effort designed to monopolize
the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea [] on a generic
computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, creating, analyzing, transmitting, and displaying
data amounts to electronic data query and retrieval—one of the most basic
functions of a computer. Simply reciting the use of a Bayesian network
model is no more than adding a mathematical concept, another category of
abstract idea. Similarly reciting what the displayed information represents is
a conceptual description. The query recited in step 8 is prefatory to the
actual recited display step and so is aspirational rather than functional,
describing how the displayed data was hoped to have been created. This is
outside the scope of the recited display step. All of these computer functions
are generic, routine, conventional computer activities that are performed
only for their conventional uses. See Elec. Power Grp. LLC v. Alstom S.A.,
830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz Interactive Call
Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a
possible narrower construction of the terms ‘processing,’ ‘receiving,’ and
‘storing,’ . . . those functions can be achieved by any general purpose
computer without special programming”). None of these activities is used in
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some unconventional manner nor does any produce some unexpected result.
Appellant does not contend it invented any of these activities. In short, each
step does no more than require a generic computer to perform generic
computer functions. As to the data operated upon, “even if a process of
collecting and analyzing information is ‘limited to particular content’ or a
particular ‘source,’ that limitation does not make the collection and analysis
other than abstract.” SAP America, Inc. v. InvestPic LLC, 898 F.3d 1161,
1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 21 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-creation-analysis-
transmission-display is equally generic and conventional. See Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of
receiving, selecting, offering for exchange, display, allowing access, and
receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed
Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of
data retrieval, analysis, modification, generation, display, and transmission),
Two-Way Media Ltd. v. Comcast Cable Communications, LLC, 874 F.3d
1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling,
and monitoring). The ordering of the steps is therefore ordinary and
conventional.
We conclude that claim 21 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
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REMAINING CLAIMS
Claim 21 is representative. The remaining method claims merely
describe process parameters. We conclude that the method claims at issue
are directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic
computer components configured to implement the same idea.
This Court has long “warn[ed] ... against” interpreting § 101 “in
ways that make patent eligibility ‘depend simply on the
draftsman’s art.’”
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the managing
personal behavior or relationships or interactions between people of
managing medical treatment by advising one to present diagnostic and
prescriptive data based on putting previous treatment and prescriptive data
through a mathematical model, without significantly more.
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APPELLANT’S ARGUMENTS
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action 2–6 and Answer 3–6 and
reach similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by Appellant’s argument that the “system
processes data in an unconventional way, utilizing a Bayesian network to
capture causal relationships between patient data and diagnostic steps, and
ultimately providing an interactive display of patient information comprising
an inventive diagnostic analysis.” Reply Br. 3–4. The determining of
probabilities step in limitation 7 refers to somehow using a Bayesian
network model to capture causal relationships amongst clinical information,
but does not recite how this determination is done from the model or how
the model is structured or implemented to achieve such capture. Such a
purely functional recitation is no more than the conceptual idea for using
such a model.
Further, that conceptual idea is a mathematical concept, another
exemplar of an abstract idea. See Benson supra. The claims recite displays
being interactive only as an adjectival modifier, absent any recitation of how
or in what manner interaction manifests, and is devoid of technological
implementation details. Thus this is also no more than a conceptual idea of
the display. The Specification refers to a Bayesian network10 only as
something “that captures the causal relationships between evidences,” and
does not describe how it does so, or that such a network produces any
unexpected results. Appellant appears to be arguing no more than that the
concept of using a Bayesian network per se is inventive. But everyone who

10 See footnote 4 supra.
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ever studied probability and statistics, including those of ordinary skill,
knows how pervasive knowledge of generic Bayesian techniques are. It is
notorious for being conventional.
We are not persuaded by Appellant’s argument that the “interactive
display includes at least a differential diagnosis region and a suggested next
region. Appellant maintains that these specific features, as claimed, are
neither well-known nor disclosed in the prior art.” Reply Br. 4. Whether
they are known in the art is not at issue in an eligibility rejection. “A claim
for a new abstract idea is still an abstract idea. The search for a § 101
inventive concept is thus distinct from demonstrating § 102 novelty.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016). The content of the display is just data perceptible only in the mind of
the beholder. This may improve information in the beholder’s mind, but not
the technology that provides that information. It cannot confer eligibility.
“The claims are focused on providing information to traders in a way that
helps them process information more quickly, not on improving computers
or technology.” Trading Techs., 921 F.3d at 1384.
We are not persuaded by Appellant’s argument that the claims are
analogous to those in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed.
Cir. 2016). Reply Br. 4. The claims differ from those found patent
eligible in Enfish, where the claims were “specifically directed to a self-
referential table for a computer database.” 822 F.3d 1327, 1337 (Fed. Cir.
2016). The claims thus were “directed to a specific improvement to the
way computers operate” rather than an abstract idea implemented on a
computer. Id. at 1336. Here, by contrast, the claims are not directed to
an improvement in the way computers operate. Though the claims
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purport to accelerate the process of yielding improved diagnostic accuracy,
our reviewing court has held that speed and accuracy increases stemming
from the ordinary capabilities of a general purpose computer “do[] not
materially alter the patent eligibility of the claimed subject matter.”
Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d
1266, 1278 (Fed. Cir. 2012). Instead, the claims are more analogous to
those in FairWarning, 839 F.3d 1089 (Fed. Cir. 2016), wherein claims
reciting “a few possible rules to analyze audit log data” were found directed
an abstract idea because they asked “the same questions (though
perhaps phrased with different words) that humans in analogous situations
detecting fraud have asked for decades.” 839 F.3d at 1094, 1095. To the
extent the claims recite an “inventive structuring of data” (Reply Br. 4) this
is only in the manner data is displayed, not how it is stored and related
internally, and so is no more than a concept. See Trading Techs. supra.
Appellant next contends the claims are analogous to those in AmDocs
(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016). Reply
Br. 4. This is not quite accurate. The Court’s analysis turned heavily on a
prior construction.
Claim 1 requires “computer code for using the accounting
information with which the first network accounting record is
correlated to enhance the first network accounting record.” In
Amdocs I, we construed “enhance” as being dependent upon the
invention’s distributed architecture.
We construed “enhance” as meaning “to apply a number of
field enhancements in a distributed fashion.” We took care to
note how the district court explained that “[i]n this context,
‘distributed’ means that the network usage records are
processed close to their sources before being transmitted to a
centralized manager.” And we specifically approved of the
district court’s “reading the ‘in a distributed fashion’ and the
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‘close to the source’ of network information requirements into
the term ‘enhance.’”
AmDocs, 841 F.3d at 1300 (citations omitted). Thus, the Court read “to
apply a number of field enhancements in a distributed fashion” into “using
the accounting information with which the first network accounting record is
correlated to enhance the first network accounting record.” This is
substantially more than merely displaying data in some new conceptual
layout.
Appellant also attempts to analogize the claims to those involved in
McRO, Inc. v. Bandai Namco Games America Inc., 837 F.3d 1299 (Fed.
Cir. 2016). Reply Br. 4. In McRO, the court held that, although the
processes were previously performed by humans, “the traditional process
and newly claimed method . . . produced . . . results in fundamentally
different ways.” FairWarning v. Iatric Systems, 839 F.3d 1089, 1094
(Fed. Cir. 2016) (differentiating the claims at issue from those in McRO).
In McRO, “it was the incorporation of the claimed rules not the use of the
computer, that improved the existing technology process,” because the
prior process performed by humans “was driven by subjective
determinations rather than specific, limited mathematical rules.” 837 F.3d
at 1314 (internal quotation marks, citation, and alterations omitted). In
contrast, the claims of the instant application merely implement an old
practice of using decision criteria in making clinical decisions in a new
environment. Appellant has not argued that the claimed processes of
selecting clinical steps data apply rules of selection in a manner
technologically different from those which humans used, albeit with less
efficiency, before the invention was claimed. Merely pigeon holing the
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objects of decision making in tiers to aid decision making is both old and
itself abstract.
The claims in McRO were not directed to an abstract idea, but
instead were directed to “a specific asserted improvement in
computer animation, i.e., the automatic use of rules of a
particular type.” We explained that “the claimed improvement
[was] allowing computers to produce ‘accurate and realistic lip
synchronization and facial expressions in animated characters’
that previously could only be produced by human animators.”
The claimed rules in McRO transformed a traditionally
subjective process performed by human artists into a
mathematically automated process executed on computers.
FairWarning, 839 F.3d at 1094. Appellant goes on to argue that a
“clinician would not model the diagnostic decision making process in the
way prescribed by the present claims.” Reply Br. 5. But this is a conclusory
argument and no evidence with analysis of record supports it.
Claims 2–9, 12–15, and 21–23 rejected under 35 U.S.C. § 103(a) as
unpatentable over Shewmake and Karlov
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action 7–24 and Answer 7–9 and
reach similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by Appellant's argument that “the cited art fails
to disclose or suggest ‘finding one or more suitable diagnostic steps to
discriminate between multiple differential diagnoses.’” Reply Br. 6. That is
taken out of context. The actual recitation is “displaying . . . the clinical
workflow care plan . . . wherein . . . the query configured for finding one
or more suitable diagnostic steps to discriminate between multiple
differential diagnoses.” Far from reciting a step of finding such steps, the
step is one of a display of information content discernable only in the human
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mind. This is generally given no patentable weight. “Information, whether
displayed in the form of price values or P&L values, is abstract.” Trading
Techs. 921 F.3d at 1384. And further, the content is somehow based on a
query configured for finding that information, absent any implementation
details for how the query is so configured (or executed), and absent any
recitation of how successful the query is.
We are not persuaded by Appellant’s argument that the “cited art fails
to disclose or suggest ‘determining, based on a Bayesian network model
capturing the causal relationships amongst the clinical information,
probabilities for a set of differential diagnoses.’” Reply Br. 7. Karlov
describes both using a Bayesian network model and capturing the causal
relationships amongst the clinical information from differential patterns of
diseases. Even if Karlov does not explicitly describe deriving the one from
the other, it was at least predictable to do so given Karlov’s recitation of the
value of each technique and their compatibility and applicability.
Claims 10, 11, and 16–18 rejected under 35 U.S.C. § 103(a) as unpatentable
over Shewmake, Karlov, and Kameda
This rejection is not separately argued.
CONCLUSIONS OF LAW
The rejection of claims 2–18 and 21–23 under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more is proper.
The rejection of claims 2–9, 12–15, and 21–23 under 35 U.S.C.
§ 103(a) as unpatentable over Shewmake and Karlov is proper.
The rejection of claims 10, 11, and 16–18 under 35 U.S.C. § 103(a) as
unpatentable over Shewmake, Karlov, and Kameda is proper.
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CONCLUSION
The rejection of claims 2–18 and 21–23 is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
2–18, 21–23 101 Eligibility 2–18, 21–23
2–9, 12–15, 21–23 103 Shewmake,
Karlov
2–9, 12–15, 21–23
10, 11, 16–18 103 Shewmake,
Karlov,
Kameda
10, 11, 16–18
Overall Outcome 2–18, 21–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED