Michael GrollmussDownload PDFPatent Trials and Appeals BoardAug 20, 201913645166 - (D) (P.T.A.B. Aug. 20, 2019) Copy Citation 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. Copy with citationCopy as parenthetical citation