Michael Grollmuss

Patent Trials and Appeals Board

Aug 20, 2019

13645166 - (D) (P.T.A.B. Aug. 20, 2019)

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.
13/645,166 10/04/2012 Michael Grollmuss 1576-0898 9865
10800 7590 08/20/2019
Maginot, Moore & Beck LLP
One Indiana Square, Suite 2200
Indianapolis, IN 46204
EXAMINER
COBANOGLU, DILEK B
ART UNIT PAPER NUMBER
3626
MAIL DATE DELIVERY MODE
08/20/2019 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL GROLLMUSS
____________

Appeal 2018-006370
Application 13/645,166
Technology Center 3600
____________

Before JOHN A. JEFFERY, DENISE M. POTHIER, and
JUSTIN BUSCH, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Under 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s
decision to reject claims 1–4 and 8–11, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention identifies a risk factor associated with a patient
by (1) identifying an elapsed time between presenting a survey question to
the patient and the patient’s entry of a response to the question; and (2)

1 Appellant identifies the real party in interest as ROBERT BOSCH
HEALTHCARE SYSTEMS INC. and ROBERT BOSCH GMBH. Br. 2.
Appeal 2018-006370
Application 13/645,166

2
identifying a deviation between the elapsed time and a history of elapsed
times taken to answer the survey question. See generally Abstract;
Spec. ¶ 6; Fig. 2.
Claims 1 and 8 are illustrative:
1. A method for identification of a risk factor in a
patient using a telehealth system, the method comprising:
recording a plurality of previous responses provided by a
patient to a first survey question, the first survey question being
part of a telemedical treatment regimen for the patient;
identifying an elapsed time for each respective previous
response in the plurality of previous responses between
presenting the first survey question to the patient and the
recording of the respective previous response;
deriving a parameter from the identified elapsed times for
the plurality of previous responses using a processor of a
telehealth analysis system of the telehealth system;
presenting the first survey question to the patient for a
current response with an audio-visual output device of a
telehealth terminal communicatively coupled to the telehealth
analysis system;
recording the current response from the patient to the first
survey question with an input device of the telehealth terminal;
identifying a current elapsed time between presenting the
first survey question and the recording of the current response
to the first survey question with a timer of the telehealth
terminal;
identifying with the processor a first deviation between
the identified current elapsed time and the parameter;
identifying with the processor a risk factor associated
with the patient in response to the identified first deviation
indicating the first elapsed time is less than the parameter by
more than a predetermined threshold, the risk factor being
failing to follow the telemedical treatment regimen; and
transmitting an alert with the processor to a healthcare
provider terminal communicatively coupled to the telehealth
analysis system indicating the identified risk factor and
associating the identified risk factor with the patient.
Appeal 2018-006370
Application 13/645,166

3
8. A method for identification of a risk factor in a
patient using a telehealth system, the method comprising:
presenting a plurality of survey questions to a patient
with an audio-visual output device of a telehealth terminal of
the telehealth system, the first survey question being part of a
telemedical treatment regimen for the patient;
recording a response to each of the plurality of survey
questions with an input device of the telehealth terminal;
identifying a total elapsed time between presenting a first
one of the plurality of survey questions and recording a
response to a final one of the plurality of survey questions with
a timer of the telehealth terminal;
identifying with a processor of a telehealth analysis
system of the telehealth system communicatively coupled to the
telehealth terminal a deviation between the total elapsed time
and a parameter corresponding to a plurality of previously
identified elapsed times taken for the patient to respond to the
plurality of survey questions;
identifying with the processor a risk factor in response to
the identified deviation indicating the total elapsed time is less
than the parameter corresponding to the plurality of previously
identified elapsed times by more than a predetermined
threshold, the risk factor being failing to follow the telemedical
treatment regimen; and
transmitting an alert with the processor to a healthcare
provider terminal communicatively coupled to the telehealth
analysis system indicating the identified risk factor and
associating the identified risk factor with the patient.

THE REJECTIONS
The Examiner rejected claims 1–4 and 8–11 under 35 U.S.C. § 101 as
directed to ineligible subject matter. Final Act. 2–6.2

2 Throughout this opinion, we refer to (1) the Final Rejection mailed August
10, 2017 (“Final Act.”); (2) the Appeal Brief filed December 29, 2017
(“Br.”); and (3) the Examiner’s Answer mailed April 3, 2018 (“Ans.”).
Appeal 2018-006370
Application 13/645,166

4
The Examiner rejected claims 1–4 and 8–11 under 35 U.S.C. § 103(a)
as unpatentable over Madan et al. (US 2014/0052474 A1; published Feb. 20,
2014 (claiming priority to provisional application nos. 61/683,867 and
61/683,869 filed Aug. 16, 2012)) and Walker et al. (US 6,513,014 B1;
issued Jan. 28, 2003). Final Act. 6–11.

THE INELIGIBILITY REJECTION
The Examiner determines that the claimed invention is directed to an
abstract idea, namely “identification of a risk factor in a patient.” Final Act.
2. The Examiner adds that the claims do not include elements that add
significantly more than the abstract idea, but merely recite generic computer
components performing generic computer functions that are well-
understood, routine, and conventional. Id. at 5. Based on these
determinations, the Examiner concludes that the claims are ineligible under
§ 101. Id. at 2.
Appellant argues that the claimed invention is not directed to an
abstract idea, but instead is eligible for similar reasons to those provided
McRO, Inc. v. Bandai Namco Games America, Inc., 837 F.3d 1299 (Fed.
Cir. 2016). Br. 5–7. According to Appellant, the claimed invention
improves a telehealth system’s operation because the claimed invention
automates an identification of risk factors in a way not previously known or
considered in the prior art. Id. at 6.

ISSUE
Under § 101, has the Examiner erred in rejecting claims 1–4 and 8–11
as directed to ineligible subject matter? This issue turns on whether the
Appeal 2018-006370
Application 13/645,166

5
claims are directed to an abstract idea and, if so, whether recited elements—
considered individually and as an ordered combination—transform the
nature of the claims into a patent-eligible application of that abstract idea.

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.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. See, e.g., Alice Corp. v. CLS Bank Int’l, 573 U.S.
208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. 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 concept 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. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
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 (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
Appeal 2018-006370
Application 13/645,166

6
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
(15 How.) 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 U.S. 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.”). That
said, 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 turn 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 and citation
omitted). “A claim that recites an abstract idea must include ‘additional
Appeal 2018-006370
Application 13/645,166

7
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.
In January 2019, the USPTO published revised guidance on the
application of § 101. See 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MANUAL OF PATENT EXAMINING PROCEDURE
(MPEP) §§ 2106.05(a)–(c), (e)–(h) (9th ed. Rev. 08.2017, Jan. 2018)).
Only if a claim (1) recites a judicial exception, and (2) does not integrate that
exception into a practical application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Guidance, 84 Fed. Reg. at 56.

Appeal 2018-006370
Application 13/645,166

8
ANALYSIS
Alice/Mayo Step One
Independent claim 1 recites:
A method for identification of a risk factor in a patient
using a telehealth system, the method comprising:
recording a plurality of previous responses provided by a
patient to a first survey question, the first survey question being
part of a telemedical treatment regimen for the patient;
identifying an elapsed time for each respective previous
response in the plurality of previous responses between
presenting the first survey question to the patient and the
recording of the respective previous response;
deriving a parameter from the identified elapsed times
for the plurality of previous responses using a processor of a
telehealth analysis system of the telehealth system;
presenting the first survey question to the patient for a
current response with an audio-visual output device of a
telehealth terminal communicatively coupled to the telehealth
analysis system;
recording the current response from the patient to the
first survey question with an input device of the telehealth
terminal;
identifying a current elapsed time between presenting the
first survey question and the recording of the current response
to the first survey question with a timer of the telehealth
terminal;
identifying with the processor a first deviation between
the identified current elapsed time and the parameter;
identifying with the processor a risk factor associated
with the patient in response to the identified first deviation
indicating the first elapsed time is less than the parameter by
more than a predetermined threshold, the risk factor being
failing to follow the telemedical treatment regimen; and
transmitting an alert with the processor to a healthcare
provider terminal communicatively coupled to the telehealth
Appeal 2018-006370
Application 13/645,166

9
analysis system indicating the identified risk factor and
associating the identified risk factor with the patient.3

As the disclosure explains, Appellant’s invention identifies a risk
factor associated with a patient by (1) identifying an elapsed time between
presenting a survey question to the patient and the patient’s entry of a
response to the question, and (2) identifying a deviation between the elapsed
time and a history of elapsed times taken to answer the survey question. See
generally Abstract; Spec. ¶ 6; Fig. 2. In one example, if the identified
elapsed times to the survey question increase beyond a threshold, then the
risk factor is identified. Spec. ¶ 41.
Turning to claim 1, we first note that the claim recites a method and,
therefore, falls within the process category of § 101. See Guidance, 84 Fed.
Reg. at 53–54 (citing MPEP §§ 2106.03, 2106.06). But despite falling
within this statutory category, we must still determine whether the claim is
directed to a judicial exception, namely an abstract idea. See Alice, 573 U.S.
at 217. To this end, we must determine whether the claim (1) recites a
judicial exception, and (2) fails to integrate the exception into a practical
application. See Guidance, 84 Fed. Reg. at 52–55. If both elements are
satisfied, the claim is directed to a judicial exception under the first step of
the Alice/Mayo test. See id.
In the rejection, the Examiner determines that claim 1 is directed to an
abstract idea, namely “identification of a risk factor in a patient.” Final Act.
2. To determine whether a claim recites an abstract idea, we (1) identify the

3 Unless otherwise indicated, we italicize and/or quote text that reproduces
recited limitations for emphasis and clarity.
Appeal 2018-006370
Application 13/645,166

10
claim’s specific limitations that recite an abstract idea, and (2) determine
whether the identified limitations fall within certain subject matter
groupings, namely, (a) mathematical concepts4; (b) certain methods of
organizing human activity5; or (c) mental processes.6
Here, apart from the recited (1) “telehealth system”; (2) “processor of
a telehealth analysis system of the telehealth system”; (3) “audio-visual
output device of a telehealth terminal communicatively coupled to the
telehealth analysis system”; (4) “input device of the telehealth terminal”; (5)
“timer of the telehealth terminal”; and (6) “healthcare provider terminal
communicatively coupled to the telehealth analysis system,” all of claim 1’s
recited steps, which collectively are directed to identifying a patient’s risk
factor based on a history of elapsed times between presenting and recording
a question, fit squarely within at least one of the above categories of the
agency’s guidelines.
First, the step reciting “presenting the first survey question to the
patient for a current response” involves at least personal interactions,

4 Mathematical concepts include mathematical relationships, mathematical
formulas or equations, and mathematical calculations. See Guidance, 84
Fed. Reg. at 52.
5 Certain methods of organizing human activity include fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). See Guidance, 84 Fed. Reg. at 52.
6 Mental processes are concepts performed in the human mind including an
observation, evaluation, judgment, or opinion. See Guidance, 84 Fed. Reg.
at 52.
Appeal 2018-006370
Application 13/645,166

11
including following rules or instructions, at least to the extent that a person,
such as a doctor, could present the first survey question by merely writing
down the question or other associated information, or alternatively present
that information via face-to-face or written communication with another
person, such as a patient. Cf. Content Extraction & Transmission LLC v.
Wells Fargo, 776 F.3d 1343, 1345–49 (Fed. Cir. 2014) (holding ineligible
claims reciting (1) receiving output representing diverse types of hard copy
documents from an automated digitizing unit, and (2) storing information
from those documents into memory); see also CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed. Cir. 2011) (noting that a
recited step that used a map of credit card numbers to determine the validity
of a credit card transaction could be performed entirely mentally by merely
using logical reasoning to identify a likely instance of fraud by merely
observing that numerous transactions using different credit cards all
originated from the same IP address); In re Salwan, 681 F. App’x 938, 939–
41 (Fed. Cir. 2017) (unpublished) (holding ineligible claims reciting, among
other things, receiving medical records information and transmitting reports
where the claimed invention’s objective was to enable electronic
communication of tasks that were otherwise done manually using paper,
phone, and facsimile machine); Interval Licensing LLC v. AOL, Inc., 896
F.3d 1335, 1344 (Fed. Cir. 2018) (noting that a nontechnical human activity
of passing a note to a person who is in a meeting or conversation as
illustrating the invention’s focus, namely providing information to a person
without interfering with the person’s primary activity); LendingTree, LLC v.
Zillow, Inc., 656 F. App’x 991, 993–94, 996 (Fed. Cir. 2016) (unpublished)
(holding ineligible claims reciting, among other things, (1) receiving
Appeal 2018-006370
Application 13/645,166

12
selection criteria from lending institutions and credit data from a computer
user, and (2) forwarding the credit data to selected lending institutions as
directed to an abstract idea). Accordingly, the recited presenting step falls
squarely within the methods of organizing human activity categories of the
agency’s guidelines and, therefore, recites an abstract idea. See Guidance,
84 Fed. Reg. at 52 (listing exemplary methods of organizing human activity,
including personal interactions and following rules or instructions).
Second, the steps reciting (1) “recording a plurality of previous
responses provided by a patient to a first survey question, the first survey
question being part of a telemedical treatment regimen for the patient,” and
(2) “recording the current response from the patient to the first survey
question” involve at least personal interactions, including following rules or
instructions, at least to the extent that a person, such as a doctor, could
record a patient’s responses by merely memorizing, or writing down, such
responses—a step that can involve mere observation. Cf. CyberSource, 654
F.3d at 1372–73 (noting that a recited step that constructed a map of credit
card numbers could be performed by merely writing down a list of credit
card transactions made from a particular IP address). Accordingly, the
recited recording steps fall squarely within the mental processes and
methods of organizing human activity categories of the agency’s guidelines
and, therefore, recite an abstract idea. See Guidance, 84 Fed. Reg. at 52 (in
addition to listing exemplary methods of organizing human activity, listing
mental processing).
Third, the steps reciting (1) “identifying an elapsed time for each
respective previous response in the plurality of previous responses between
presenting the first survey question to the patient and the recording of the
Appeal 2018-006370
Application 13/645,166

13
respective previous response,” and (2) “identifying a current elapsed time
between presenting the first survey question and the recording of the current
response to the first survey question” can be done mentally by merely
thinking about, or writing down, such elapsed times—a step that can involve
mere observation and logical reasoning. Cf. CyberSource, 654 F.3d at
1372–73 (noting that a recited step that used a map of credit card numbers to
determine the validity of a credit card transaction could be performed
entirely mentally by merely using logical reasoning to identify a likely
instance of fraud by merely observing that numerous transactions using
different credit cards all originated from the same IP address).
In addition, identifying the elapsed times involves at least
mathematical relationships or formulas. Notably, identifying an elapsed
time between the time of presenting the first survey question and the time of
recording the first survey question is merely a subtraction between the time
of presenting the first survey question and the time of recording. See In re
Grams, 888 F.2d 835, 837 n.1 (Fed. Cir. 1989) (“Words used in a claim
operating on data to solve a problem can serve the same purpose as a
formula.”); see also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016) (noting that analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, are
essentially mental processes within the abstract idea category). Accordingly,
the recited identifying elapsed time steps fall squarely within the mental
processes and mathematical concepts categories of the agency’s guidelines
and, therefore, recite an abstract idea. See Guidance, 84 Fed. Reg. at 52 (in
addition to listing exemplary methods of organizing human activity and
Appeal 2018-006370
Application 13/645,166

14
mental processing, listing mathematical concepts including mathematical
relationships).
Fourth, the step reciting “deriving a parameter from the identified
elapsed times for the plurality of previous responses” can be done mentally
by merely thinking about, or writing down, such a parameter—a step that
can involve mere observation and logical reasoning. Cf. CyberSource, 654
F.3d at 1372–73. In addition, deriving the parameter involves at least
mathematical relationships or formulas, particularly in light of the
Specification’s paragraph 32 indicating that “parameters include, but are not
limited to, the mean, median, mode, variance, and standard deviation for the
elapsed response times.” Spec. ¶ 32. Accordingly, the recited deriving step
falls squarely within the mental processes and mathematical concepts
categories of the agency’s guidelines and, therefore, recites an abstract idea.
See Guidance, 84 Fed. Reg. at 52.
Fifth, the step reciting “identifying . . . a first deviation between the
identified current elapsed time and the parameter” can be done mentally by
merely thinking about, or writing down, such a deviation—a step that can
involve mere observation and logical reasoning. Cf. CyberSource, 654 F.3d
at 1372–73. In addition, identifying the deviation involves at least
mathematical relationships or formulas. Notably, identifying the deviation
between the identified current elapsed time and the parameter would merely
involve a subtraction (see Spec. ¶ 33 (stating “the term ‘deviation’ refers to a
difference”)) between the identified current elapsed time and the parameter.
Accordingly, the recited identifying deviation step falls squarely within the
mental processes and mathematical concepts categories of the agency’s
Appeal 2018-006370
Application 13/645,166

15
guidelines and, therefore, recites an abstract idea. See Guidance, 84 Fed.
Reg. at 52.
Sixth, the step reciting “identifying . . . a risk factor associated with
the patient in response to the identified first deviation indicating the first
elapsed time is less than the parameter by more than a predetermined
threshold, the risk factor being failing to follow the telemedical treatment
regimen” can be done entirely mentally by merely thinking about, or writing
down, such an identified risk factor—a step that can involve mere
observation and logical reasoning. Cf. CyberSource, 654 F.3d at 1372–73.
In addition, identifying the risk factor involves at least mathematical
relationships or formulas. Notably, identifying the risk factor in the claim
merely determines a difference, or subtraction, between the identified first
deviation and the parameter is less than a threshold. Accordingly, the
recited identifying deviation step falls squarely within the mental processes
and mathematical concepts categories of the agency’s guidelines and,
therefore, recites an abstract idea. See Guidance, 84 Fed. Reg. at 52.
Seventh, the step reciting “transmitting an alert . . . indicating the
identified risk factor and associating the identified risk factor with the
patient” involves at least personal interactions, including following rules or
instructions, at least to the extent that a person, such as a doctor, could
transmit the alert by merely writing down the alert or other associated
information, or alternatively present that information via face-to-face or
written communication with another person, such as the patient. Cf. Content
Extraction, 776 F.3d at 1345–49; see also CyberSource, 654 F.3d at 1372;
Salwan, 681 F. App’x at 939–41; Interval Licensing, 896 F.3d at 1344;
LendingTree, 656 F. App’x at 993–94, 996. Accordingly, the transmitting
Appeal 2018-006370
Application 13/645,166

16
step falls squarely within the methods of organizing human activity
categories of the agency’s guidelines and, therefore, recites an abstract idea.
See Guidance, 84 Fed. Reg. at 52.
Although the claim recites an abstract idea based on these methods of
organizing human activity, mental processes, and mathematical concepts, we
nevertheless must still determine whether the abstract idea is integrated into
a practical application, namely whether the claim applies, relies on, or uses
the abstract idea in a manner that imposes a meaningful limit on the abstract
idea, such that the claim is more than a drafting effort designed to
monopolize the abstract idea. See Guidance, 84 Fed. Reg. at 54–55. To this
end, we (1) identify whether there are any additional recited elements
beyond the abstract idea, and (2) evaluate those elements individually and
collectively to determine whether they integrate the exception into a
practical application. See id.
Here, the recited (1) “telehealth system”; (2) “processor of a
telehealth analysis system of the telehealth system”; (3) “audio-visual output
device of a telehealth terminal communicatively coupled to the telehealth
analysis system”; (4) “input device of the telehealth terminal”; (5) “timer of
the telehealth terminal”; and (6) “healthcare provider terminal
communicatively coupled to the telehealth analysis system” are the only
recited elements beyond the abstract idea, but those additional elements do
not integrate the abstract idea into a practical application when reading claim
1 as a whole.
In this regard, Appellant’s reliance on McRO is unavailing. There, the
claimed process used a combined order of specific rules that rendered
information in a specific format that was applied to create a sequence of
Appeal 2018-006370
Application 13/645,166

17
synchronized, animated characters. McRO, 837 F.3d at 1315. Notably, the
recited process automatically animated characters using particular
information and techniques—an improvement over manual three-
dimensional animation techniques that was not directed to an abstract idea.
Id. at 1316.
But unlike the claimed invention in McRO that improved how the
physical display operated to produce better quality images, the claimed
invention here merely uses generic computing components to identify a
patient’s risk factor based on a history of elapsed times between presenting
and recording a question —a generic computer implementation that is not
only directed to fundamental human activity organization, mental processes,
and mathematical concepts categories, but also does not improve a display
mechanism as was the case in McRO. See SAP Am. v. InvestPic, LLC, 898
F.3d 1161, 1167 (Fed. Cir. 2018) (distinguishing McRO). Although the
claimed invention requires computer components, it is the incorporation of
those components—not a claimed rule (see McRO, 837 F.3d at 1315)—that
purportedly improves the existing process. Cf. FairWarning IP, LLC v.
Iatric Systems, Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016). In short, the
claimed invention does not focus on improving computers as tools, but
rather certain independently abstract ideas that use computers as tools. See
Elec. Power, 830 F.3d at 1354.
Therefore, we do not find that the claim recites additional elements
improving (1) the computer itself, or (2) another technology or technical
field. See Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(a)).
Rather, the above-noted additional element merely (1) applies the abstract
idea on a computer; (2) includes instructions to implement the abstract idea
Appeal 2018-006370
Application 13/645,166

18
on a computer; or (3) uses the computer as a tool to perform the abstract
idea. See Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(f)).
That the claimed invention collects survey responses at various times
to compile a single patient record does not integrate the abstract idea into a
practical application. Collecting data from various sources to compile a
single, comprehensive, patient health record is no more than within the
capacity of the human mind. See HealthTrio, LLC v. Aetna, Inc., 2015 WL
5675303 (D. Colo. 2015), aff’d, 673 F. App’x. 1006 (Mem) (Fed. Cir. 2017).
Nor does administering a test by collecting survey responses to a first survey
question as claimed integrate the abstract idea into a practical application.
See Multimedia Plus, Inc. v. Playerlync, LLC, 198 F. Supp. 3d 264, 270
(S.D. N.Y. 2016), aff’d, 695 F. App’x. 577 (Mem) (Fed. Cir. 2017) (holding
administering a test is an abstract idea).
In addition, the step reciting “transmitting an alert . . . indicating the
identified risk factor and associating the identified risk factor with the
patient” is insignificant post-solution activity, at least in the sense that it is
merely ancillary to the focus of the claimed invention, namely a patient’s
risk factor identification, given the transmitting function’s high level of
generality and context in the claimed invention. Where, as here, the recited
transmitting function is merely ancillary to the patient’s risk factor
identification focus of the claimed invention, given its high level of
generality and context in the claimed invention, the recited authentication
outputting function is insignificant post-solution activity and, therefore, does
not integrate the exception into a practical application for this additional
reason. See Guidance, 84 Fed. Reg. at 55 (citing MPEP § 2106.05(g)).
Appeal 2018-006370
Application 13/645,166

19
In conclusion, although the recited functions may be beneficial by
applying rules to a parameter to identify a risk factor (see Br. 6), a claim for
a useful or beneficial abstract idea is still an abstract idea. See Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379–80 (Fed. Cir.
2015).
We, therefore, agree with the Examiner that claim 1 is directed to an
abstract idea.

Alice/Mayo Step Two
Turning to Alice/Mayo step two, claim 1’s additional recited elements,
namely the recited (1) “telehealth system”; (2) “processor of a telehealth
analysis system of the telehealth system”; (3) “audio-visual output device of
a telehealth terminal communicatively coupled to the telehealth analysis
system”; (4) “input device of the telehealth terminal”; (5) “timer of the
telehealth terminal”; and (6) “healthcare provider terminal communicatively
coupled to the telehealth analysis system”— considered individually and as
an ordered combination—do not provide an inventive concept such that
these additional elements amount to significantly more than the abstract
idea. See Alice, 573 U.S. at 221; see also Guidance, 84 Fed. Reg. at 56. As
noted above, the claimed invention merely uses generic computing
components to implement the recited abstract idea.
The generic computing functionality of the additional recited elements
is well-understood, routine, and conventional. See, e.g., Alice, 573 U.S. at
225–26 (holding that “implement[ing] the abstract idea . . . on a generic
computer” was not sufficient “to transform an abstract idea into a patent-
eligible invention”); Intellectual Ventures I LLC v. Capital One Bank (USA),
Appeal 2018-006370
Application 13/645,166

20
792 F.3d 1363, 1368 (Fed. Cir. 2015) (noting that a recited user profile (i.e.,
a profile keyed to a user identity), database, and communication medium are
generic computer elements); Mortg. Grader, Inc. v. First Choice Loan
Servs., Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016) (noting that
components such an “interface,” “network,” and “database” are generic
computer components that do not satisfy the inventive concept requirement);
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That
a computer receives and sends the information over a network—with no
further specification—is not even arguably inventive.”); accord Final Act. 5
(concluding that the claims do not include elements that add significantly
more than the abstract idea, but merely recite generic computer components
performing generic computer functions that are well-understood, routine,
and conventional activities); see also, e.g., Spec. ¶¶ 14–21; Fig. 1
(describing generic computer components associated with the disclosed
invention).
We reach a similar conclusion regarding the recited insignificant
extra-solution activity, namely “transmitting an alert . . . indicating the
identified risk factor and associating the identified risk factor with the
patient.” That the identified risk factor is transmitted as an alert does not
mean that this step is performed in an unconventional way to add
significantly more than the abstract idea and provide an inventive concept
under Alice/Mayo step two. See Guidance, 84 Fed. Reg. at 56. Given these
limitations’ (1) high level of generality, and (2) use of generic computing
components whose functionality is well-understood, routine, and
conventional for the reasons noted previously, the recited extra-solution
Appeal 2018-006370
Application 13/645,166

21
activity does not add significantly more than the abstract idea to provide an
inventive concept under Alice/Mayo step two.
In conclusion, the additional recited elements—considered
individually and as an ordered combination—do not add significantly more
than the abstract idea to provide an inventive concept under Alice/Mayo step
two. See Alice, 573 U.S. at 221; see also Guidance, 84 Fed. Reg. at 56.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 1, and claims 2–4 and 8–11 not argued separately with particularity.

THE OBVIOUSNESS REJECTION
The Examiner finds that Madan discloses many recited elements of
independent claim 1 including, among other things, (1) recording previous
responses provided by a patient to a first survey question; (2) identifying an
elapsed time for each respective previous response in the previous responses
between presenting the first survey question to the patient and the recording
of the respective previous response; and (3) deriving a parameter from the
identified elapsed times for the previous responses. Final Act. 6–7. The
Examiner also finds Madan discloses identifying a risk factor associated
with the patient in response to the identified first deviation indicating the
first elapsed time is less than the parameter by more than a predetermined
threshold. Id. at 7. Although the Examiner acknowledges that Madan does
not (1) identify a current elapsed time between presenting the first survey
question and the recording of the current response to the first survey
question, and (2) identify a first deviation between the identified current
elapsed time and the parameter, the Examiner cites Walker for teaching this
feature in concluding that the claim would have been obvious. Id. at 8.
Appeal 2018-006370
Application 13/645,166

22
Appellant argues that the Examiner’s reliance on Madan is misplaced
because, among other things, Madan does not disclose (1) recording
previous responses provided by a patient to a first survey question; (2)
identifying an elapsed time for each respective previous response in the
previous responses between presenting the first survey question to the
patient and the recording of the respective previous response; and (3)
deriving a parameter from the identified elapsed times for the previous
responses. Br. 7–9.

ISSUES
Under § 103, has the Examiner erred in finding that Madan and
Walker collectively would have taught or suggested:
(1)(A) recording a plurality of previous responses provided by a
patient to a first survey question; (B) identifying an elapsed time for each
respective previous response in the plurality of previous responses between
presenting the first survey question to the patient and the recording of the
respective previous response; (C) deriving a parameter from the identified
elapsed times for the plurality of previous responses using a processor of a
telehealth analysis system of the telehealth system; and (D) identifying with
the processor a risk factor associated with the patient in response to the
identified first deviation indicating the first elapsed time is less than the
parameter by more than a predetermined threshold, the risk factor being
Appeal 2018-006370
Application 13/645,166

23
failing to follow the telemedical treatment regimen, as recited in claim 1;
and
(2) identifying a total elapsed time between presenting a first one of
the plurality of survey questions and recording a response to a final one of
the plurality of survey questions, as recited in claim 8?

ANALYSIS
CLAIMS 1–4 (ISSUE 1)
We sustain the Examiner’s obviousness rejection of independent
claim 1. Final Act. 6–9.
Issue 1A
Appellant asserts paragraph 15 of Madan discloses receiving a first
survey response during a first time period and a second survey response
during a second time period, but argues Madan does not disclose a patient
responding to the same survey in each time period. Br. 7.
We are unpersuaded of error. Appellant’s arguments do not
address—let alone persuasively rebut—the Examiner’s additionally relied-
upon passages in Madan’s paragraph 56. See Ans. 4. In paragraph 56,
Madan explains that block S112 illustrated in Figure 1A prompts a patient to
fill out a two-question survey every morning at 9 AM. Madan’s exemplary
question includes whether prescribed medications were taken. Madan ¶ 56;
Fig. 1A (illustrating “Did you take your meds?”). Madan’s block S112
receives the patient responses to the survey. Id. ¶ 54. Madan, then, at least
suggests recording previous responses provided by the patient to whether
prescribed medications were taken (the claimed “first survey question”). On
this record, then, the weight of the evidence favors the Examiner’s position.
Appeal 2018-006370
Application 13/645,166

24

Issue 1B
The Examiner finds Madan discloses identifying an elapsed time for
each respective previous response in the previous responses between
presenting a first survey question to a patient and the recording of the
respective previous response. Final Act. 7. Appellant acknowledges the
Examiner’s findings in this regard are limited to Madan—not Walker. Br. 9.
Appellant asserts Madan’s “log of use” of a native communication
application is accessed to find a patient’s responses to a survey, but argues
Madan does not disclose determining an elapsed time between presenting a
survey question to the patient and recording a response to the survey
question. Id.
We are unpersuaded of error. Madan discloses collecting data relating
to the patient’s length of time to respond to inbound communications.
Madan ¶ 24. As discussed above, Madan explains that the patient fills out a
two-question survey—an inbound communication—every morning at 9 AM.
See id. at ¶ 56. Madan, then, at least suggests identifying an elapsed time for
each respective previous response in the previous responses between
presenting whether prescribed medications were taken (the claimed “first
survey question”) to the patient and the recording of the respective previous
response. Appellant’s arguments do not address—let alone persuasively
rebut—the Examiner’s additionally relied-upon passages in Madan’s
Appeal 2018-006370
Application 13/645,166

25
paragraphs 24 and 56. See Ans. 4–5. On this record, then, the weight of the
evidence favors the Examiner’s position.

Issue 1C
Appellant asserts Madan’s Behavior Feature Engine (BFE) generates
representations of patient behavior, but argues Madan does not teach
deriving a parameter from the patient’s elapsed times for responding to
survey questions. Br. 8 (citing Madan ¶ 80).
We are unpersuaded of error. Madan teaches repeating block S112—
the two-question survey illustrated in Figure 1A—to generate a set of
communication behavior-treatment adherence features for a patient over
time. Madan ¶ 66. Notably, Madan’s BFE (1) converts the patient data of
block S112 into statistical features, and (2) predicts the health status of the
patient, such as the patient’s treatment adherence. Id. ¶ 73. For example,
Madan’s BFE compares a patient behavior feature value for a specific period
of time against the patient’s “baseline (i.e., typical or normal) behavior”
using patient data gathered over time. Id. ¶ 80, cited in Final Act. 7; Ans. 5.
Madan, in disclosing using patient data gathered over time to determine
typical behavior, at least suggests using the repeated block S112—the two-
question survey illustrated in Figure 1A—as the patient data gathered over
time. Moreover, Madan, in at least suggesting using the two-question
survey illustrated in Figure 1A gathered over time to determine normal
behavior, at least suggests averaging the responses to the two-question
survey illustrated in Figure 1A gathered over time to determine the normal
behavior. See Madan ¶ 80 (disclosing the BFE can output comparative
representations of base patient behavior features “in the form of differences,
Appeal 2018-006370
Application 13/645,166

26
ratios, percentages, etc.”). Madan, therefore, at least suggests deriving an
average (the claimed “parameter”) from identified elapsed times for the
previous responses to the two-question survey illustrated in Figure 1A. To
the extent Appellant contends Madan does not disclose elapsed times for
patient responses are a factor in determining the patient behavior (Br. 8),
such contention is not commensurate with the scope of the claim, which
recites no such determination of a patient’s behavior, but rather determining
a parameter from elapsed times of previous responses to a first survey
question. On this record, then, the weight of the evidence favors the
Examiner’s position.

Issue 1D
Appellant argues Madan does not disclose or suggest associating a
risk factor with a patient based on elapsed times for responding to survey
questions because Madan does not disclose such elapsed times. Br. 10.
We are unpersuaded of error. As discussed above, Madan at least
suggests identifying an elapsed time for each respective previous response in
the previous responses between presenting whether prescribed medications
were taken (the claimed “first survey question”) to the patient and the
recording of the respective previous response. See Madan ¶¶ 24, 56. Madan
discloses (1) extrapolating a patient health status from survey responses, and
(2) combining the patient health status with patient communication behavior
to generate a health risk model. Id. ¶ 25, cited in Final Act. 7; Ans. 6.
Madan, in disclosing extrapolating a patient health status from survey
responses, at least suggests extrapolating a patient health status from the
identified elapsed times for each respective previous survey response.
Appeal 2018-006370
Application 13/645,166

27
Madan, therefore, at least suggests associating a patient health status (the
claimed “risk factor”) with a patient based on the identified elapsed times for
responding to survey questions.
Appellants’ arguments regarding Walker’s alleged shortcomings
pertaining to (1) correlating elapsed times to a risk factor for a patient of
failing to follow the telemedical treatment regimen, and (2) associating a
risk factor with a patient based on elapsed times for the patient's responses to
survey questions (Br. 10) are unpersuasive. In short, Appellants’ arguments
in this regard are not germane to the reason why Walker was cited, namely
for (1) identifying a current elapsed time between presenting a first survey
question and the recording of a current response to the first survey question
with a timer of a telehealth terminal, and (2) identifying a first deviation
between the identified current elapsed time and a parameter. See Final Act.
8.

Conclusion
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 1, and claims 2–4 not argued separately with particularity.

CLAIMS 8–11 (ISSUE 2)
We are, however, persuaded of error in the Examiner’s obviousness
rejection of independent claim 8. In rejecting claims under 35 U.S.C. § 103,
it is incumbent upon the Examiner to establish a factual basis to support the
legal conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed.
Appeal 2018-006370
Application 13/645,166

28
Cir. 1988). In so doing, the Examiner must make the factual determinations
set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966). Furthermore,
there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness. . . .
[H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim,
for a court can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ.

KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). If the Examiner’s burden is met,
the burden then shifts to the Appellant to overcome the prima facie case with
argument and/or evidence. Obviousness is then determined on the basis of
the evidence as a whole and the relative persuasiveness of the arguments.
See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
We begin by noting a key difference between independent claims 1
and 8. Claim 1 calls for identifying an elapsed time for each respective
response in responses between presenting a first survey question and the
recording of the respective response. Claim 8, on the other hand, calls for
identifying a total elapsed time between presenting a first survey question
and recording a response to a final survey question.
Turning to the rejection, the Examiner’ mapping of the recited total
elapsed time as recited in claim 8 is unclear. Apart from the header of the
rejection indicating claim 8 is rejected under § 103(a) as being unpatentable
over Madan and Walker (see Final Act. 6), the Examiner does not specify
which reference teaches the recited total elapsed time of claim 8, let alone
Appeal 2018-006370
Application 13/645,166

29
which particular disclosure corresponds to the recited total elapsed time
limitation (see id. at 10).
Notably, Appellant emphasizes this deficiency, noting the key
differences in this regard between claim 1 and claim 8. See Br. 11. Despite
these distinctions, the Examiner merely states, without further explanation or
analysis, that “[a]rguments related to the rejection of claim 8 . . . have been
addressed” by the responses to Appellants arguments concerning claim 1.
Ans. 6. In other words, the Examiner finds the arguments related to the
recited total elapsed time in claim 8 are addressed by the findings and
conclusions with respect to claim 1, but claim 1 lacks this limitation. This
approach, which ignores the clear differences between the independent
claims, is deficient on its face and, therefore, falls short of establishing a
prima facie case of obviousness for claim 8.
Therefore, for the foregoing reasons, we are persuaded that the
Examiner erred in rejecting independent claim 8 and dependent claims 9–11
for similar reasons. Because this issue is dispositive regarding our reversing
the § 103 rejection of these claims, we need not address Appellant’s other
arguments.

Appeal 2018-006370
Application 13/645,166

30
CONCLUSION
Under § 101, the Examiner did not err in rejecting claims 1–4 and 8–
11.
Under § 103, the Examiner did not err in rejecting claims 1–4, but
erred in rejecting claims 8–11.

DECISION
The Examiner’s decision to reject claims 1–4 is affirmed. Because we
sustain at least one rejection of claims 8–11, the Examiner’s decision to
reject claims 8–11 is affirmed.7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED

7 We leave to the Examiner to consider whether “the first elapsed time”
recited in claim 1 lacks antecedent basis and renders the claim indefinite
under § 112, second paragraph.