TeleTracking Technologies, Inc.

Patent Trials and Appeals Board

Jan 28, 2022

2021002933 (P.T.A.B. Jan. 28, 2022)

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. 15/859,538 12/31/2017 Thomas Perry 569.328 5717 122546 7590 01/28/2022 FERENCE & ASSOCIATES LLC 409 Broad Street PITTSBURGH, PA 15143 EXAMINER SZUMNY, JONATHON A ART UNIT PAPER NUMBER 3686 MAIL DATE DELIVERY MODE 01/28/2022 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 THOMAS PERRY and JOSEPH CHRISTOPHER SCHUCK ____________ Appeal 2021-002933 Application 15/859,5381 Technology Center 3600 ____________ Before MURRIEL E. CRAWFORD, JOSEPH A. FISCHETTI, and KENNETH G. SCHOPFER, Administrative Patent Judges. FISCHETTI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. § 134 of the Examiner’s Final Rejection2 of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies TeleTracking Technologies, Inc. as the real party in interest. Appeal Br. 3. 2 All references to the Final Office Action refer to the Final Office Action mailed on June 30, 2020. Appeal 2021-002933 Application 15/859,538 2 SUMMARY OF DECISION We affirm. THE INVENTION Appellant states the invention relates to: receiving, from a healthcare enterprise system, a notification indicating a need for at least one medical resource during a predetermined time frame …; identifying, based upon the indicated need being unavailable, at least one action to be performed to supply the at least one medical resource; and performing the at least one action. Spec. ¶ 2. Claim 1, reproduced below, is representative of the subject matter on appeal. 1. A method comprising: receiving, from a healthcare enterprise system, a notification indicating a need for at least one medical resource during a predetermined time frame at a predetermined facility within the healthcare enterprise system and related to an event resulting in an influx of unpredicted medical patients; determining that the indicated need is unavailable during at least one of: the predetermined time frame and the predetermined facility; identifying, based upon the indicated need being unavailable, at least one action to be performed to supply the at least one medical resource, wherein the at least one medical resource is based upon the predetermined time frame based upon the influx of unpredicted medical patients, wherein the at least one action comprises finding a patient ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need; and performing the at least one action to acquire the at least one medical resource not currently available during the predetermined time frame at the predetermined facility within the Appeal 2021-002933 Application 15/859,538 3 healthcare enterprise system, wherein the performing comprises decompressing the healthcare enterprise system, thereby increasing availability of the at least one medical resource, wherein the at least one medical resource is based on at least one of: a severity of injury from the event and a symptom from the event. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Name Reference Date Conry US 2006/0143060 A1 June 29, 2006 Allen US 2008/0109255 A1 May 8, 2008 Coulter US 2011/0054946 A1 Mar. 3, 2011 Jourdan US 2013/0204633 A1 Aug. 8, 2013 Amarasingham US 2015/0213222 A1 July 30, 2015 Gutfraind US 2017/0024523 A1 Jan. 26, 2017 The Examiner rejected claims 1-20 under 35 USC 101. The Examiner rejected claims 1-3, 9, 11-13, 18, and 20 under 35 U.S.C. §103 as being unpatentable over Coulter in view of Gutfraind. The Examiner rejected claims 4 and 14 under 35 U.S.C. §103 as being unpatentable over Coulter in view of Gutfraind as applied to claims 3 and 13, and further in view of Amarasingham. The Examiner rejected claims 5 and 15 under 35 U.S.C. §103 as being unpatentable over Coulter in view of Gutfraind as applied to claims 3 and 13, and further in view of Jourdan. The Examiner rejected claims 10 and 19 under 35 U.S.C. §103 as being unpatentable over Coulter in view of Gutfraind as applied to claims 9 and 18 and further in view of Allen. Appeal 2021-002933 Application 15/859,538 4 The Examiner rejected claims 1, 6-8, 11, 16, 17, and 20 under 35 U.S.C. §103 as being unpatentable over Conry in view of Gutfraind and Coulter. FINDINGS OF FACT We adopt the Examiner’s findings as set forth on pages 5, 13-27 in the Final Office Action and on pages 5-8 in the Examiner’s Answer, concerning only the 35 U.S.C. § 101 rejection. ANALYSIS 35 U.S.C. § 101 REJECTION We will affirm the rejection of claims 1-20 under 35 U.S.C. § 101. The Appellant argues claims 1-20 as a group. (Appeal Br. 39). We select claim 1 as the representative claim for this group, and so the remaining claims stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv) (2015). 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. 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. Alice, 573 U.S. at 217-18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75-77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” Appeal 2021-002933 Application 15/859,538 5 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, 67 (1972)). Concepts 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. 252, 267-68 (1853))); 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 187; 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.”). Having said that, 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.” Appeal 2021-002933 Application 15/859,538 6 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 omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alterations in original) (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 U.S. Patent and Trademark Office (USPTO) published revised guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).3 “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” Id. at 51;4 see also October 2019 Update at 1. 3 In response to received public comments, the Office issued further guidance on October 17, 2019, clarifying the 2019 Revised Guidance. USPTO, October 2019 Update: Subject Matter Eligibility (the “October 2019 Update”) (available at https://www.uspto.gov/sites/default/files/ documents/peg_oct_2019_update.pdf). 4 The 2019 Revised Guidance supersedes MANUAL OF PATENT EXAMINING PROCEDURE (“MPEP”) § 2106.04 and also supersedes all versions of the USPTO’s “Eligibility Quick Reference Sheet Identifying Abstract Ideas.” See Guidance, 84 Fed. Reg. at 51 (“Eligibility-related guidance issued prior Appeal 2021-002933 Application 15/859,538 7 Under the 2019 Revised Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes) (“Step 2A, Prong One”); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP § 2106.05(a)-(c), (e)-(h) (9th ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).5 Guidance, 84 Fed. Reg. at 52-55. Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look, under Step 2B, to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. Guidance, 84 Fed. Reg. at 52-56. The U.S. Court of Appeals for the Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether ‘their to the Ninth Edition, R-08.2017, of the MPEP (published Jan. 2018) should not be relied upon.”). Accordingly, Appellant’s arguments challenging the sufficiency of the Examiner’s rejection will not be addressed to the extent those arguments are based on now superseded USPTO guidance. 5 This evaluation is performed by (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception, and (b) evaluating those additional elements individually and in combination to determine whether the claim as a whole integrates the exception into a practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. at 54- 55. Appeal 2021-002933 Application 15/859,538 8 character as a whole is directed to excluded subject matter.’” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015)). It asks whether the focus of the claims is on a specific improvement in relevant technology or on a process that itself qualifies as an “abstract idea” for which computers are invoked merely as a tool. See Enfish, 822 F.3d at 1335-36. In so doing, as indicated above, we apply a “directed to” two prong test: 1) evaluate whether the claim recites a judicial exception, and 2) if the claim recites a judicial exception, evaluate whether the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53; see also MPEP §§ 2106.04-2106.05. The Specification states: An emergency department (ED) of a medical facility may become a very busy place. The ED often serves as a first stop for patients seeking medical care. These patients may have medical care needs ranging from less serious to life threatening. To serve patient needs, EDs must be staffed and equipped in a manner corresponding to those patient needs. Additionally, the number of patients that present at an ED may provide an indication of patients that will need downstream medical services, for example, in-patient admittance, diagnostic testing, and the like. Accordingly, hospitals try to predict the volume of patients that may present at an ED in order to create staffing schedules, bed assignments, and the like. Spec. ¶ 1. Appeal 2021-002933 Application 15/859,538 9 Predicting the volume of patients that will present at an ED may be difficult since patients present with a wide spectrum of symptoms, ailments, and the like, and different environmental conditions may cause an influx of patients that were not expected. For example, weather conditions, large-scale events, or the like, may result in more patients presenting at the ED than a typical day. Over or underestimation of a volume of patients impact both healthcare costs and patient care, for example, because staffing is based upon an estimation of the number of patients that will arrive at the ED in a particular shift. Thus, the more accurate the estimate, the more accurate staffing and resource allocation. Spec. ¶ 13. Claim 1 recites in pertinent part: receiv[e], from a healthcare enterprise system, a notification indicating a need for at least one medical resource during a predetermined time frame at a predetermined facility within the healthcare enterprise system and related to an event resulting in an influx of unpredicted medical patients; determin[e] that the indicated need is unavailable during at least one of: the predetermined time frame and the predetermined facility; identify[], based upon the indicated need being unavailable, at least one action to be performed to supply the at least one medical resource, wherein the at least one medical resource is based upon the predetermined time frame based upon the influx of unpredicted medical patients, wherein the at least one action comprises finding a patient ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need; and perform[] the at least one action to acquire the at least one medical resource not currently available during the predetermined time frame at the predetermined facility within the healthcare enterprise system, wherein the performing comprises decompressing the healthcare enterprise system, thereby increasing availability of the at least one medical resource, wherein the at least one medical resource is based on at least one Appeal 2021-002933 Application 15/859,538 10 of: a severity of injury from the event and a symptom from the event. (Emphasis added). The Examiner found claim 1 is directed to: (a) “certain methods of organizing human activity” because determining that a medical resource/bed based on an influx of unpredicted patients is unavailable and then identifying an action to supply the need such as finding patients to be stepped down/discharged amounts to managing personal behavior. Furthermore, such limitations constitute: (b) “a mental process” because a person would be able to, at the currently claimed high level of generality, practically determine in their mind that a medical resource/bed based on an influx of unpredicted patients is unavailable (e.g., when the patients arrive at an ER) and identify an action to supply the need such as finding a patient to be stepped down/discharged (which would necessarily be through some observation/evaluation/judgment/opinion). Final Act. 7. This intrinsic evidence shows that claim 1 recites a way of making available a resource which is not otherwise available at a given time to supply the identified need from other sources. Managing resources to free up resources to supply an identified need constitutes managing personal behavior or relationships or interactions between people is one of certain methods of organizing human activity that are judicial exceptions. Guidance, 84 Fed. Reg. at 52. This is consistent with the Examiner’s determination. The steps highlighted in italics above also mimic human thought processes of selecting certain information over others, i.e., evaluation, and creating, perhaps with paper and pencil, graphic data interpretation Appeal 2021-002933 Application 15/859,538 11 perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016). The Federal Circuit has held similar concepts to be abstract. For example, the Federal Circuit has held that abstract ideas include the concepts of collecting data, analyzing the data, and reporting the results of the collection and analysis, including when limited to particular content. See, e.g., Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340-41 (Fed. Cir. 2017) (identifying the abstract idea of organizing, displaying, and manipulating data); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016) (characterizing collecting information, analyzing information by steps people go through in their minds, or by mathematical algorithms, and presenting the results of collecting and analyzing information, without more, as matters within the realm of abstract ideas). Thus, under the first prong, claim 1 also recites the patent ineligible judicial exception of a mental process. Turning to the second prong of the “directed to” test, claim 1 requires no device limitation and claim 11, which the Examiner chose as representative, only generically requires a processor; and at least one sensor, and a memory device. These components are described in the Specification at a high level of generality. See Spec. ¶¶ 3, 51, 54, 56 and Fig. 3. We fail to see how the generic recitations of these most basic computer components and/or of a system so integrates the judicial exception as to “impose[] a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Guidance, 84 Fed. Reg. at 53. Appeal 2021-002933 Application 15/859,538 12 Thus, we find that the claims are directed to the judicial exceptions of a certain method of organizing human activity and a mental process. That the claims do not preempt all forms of the abstraction or may be limited to medical resources, does not make them any less abstract. See OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir. 2015) (“And that the claims do not preempt all price optimization or may be limited to price optimization in the e-commerce setting do not make them any less abstract.”). Turning to the second step of the Alice analysis, because we find that the claims are directed to abstract ideas/judicial exceptions, the claims must include an “inventive concept” in order to be patent-eligible, i.e., there must be an element or combination of elements sufficient to ensure that the claim in practice amounts to significantly more than the abstract idea itself. See Alice, 573 U.S. at 217-18 (quoting Mayo, 566 U.S. at 72-73). Concerning this step the Examiner found the following: representative independent claim 11 does not include additional elements (considered both individually and as an ordered combination) that are sufficient to amount to significantly more than the judicial exception for the same reasons to those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application. Final Act. 12. We agree with the Examiner. “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea . . . on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer at each step of the process is purely conventional. Using a computer to retrieve, select, and apply decision criteria to data and modify Appeal 2021-002933 Application 15/859,538 13 the data as a result amounts to electronic data query and retrieval-one of the most basic functions of a computer. In short, each step does no more than require a generic computer to perform generic computer functions. The claims do not, for example, purport to improve the functioning of the computer itself. The Specification spells out different generic equipment and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of information access under different scenarios. See, e.g., Spec. ¶¶ 3, 51, 54, 56 and Fig. 3. Thus, the claims at issue amount to nothing significantly more than instructions to apply the abstract idea using some unspecified, generic computer. Under our precedents, that is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225-26. Considered as an ordered combination, the computer components of Appellant’s claims add nothing that is not already present when the steps are considered separately. The sequence of data reception-analysis and storing is equally generic and conventional or otherwise held to be abstract. See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that sequence of data retrieval, analysis, modification, generation, display, and transmission was abstract); Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (holding sequence of processing, routing, controlling, and monitoring was abstract). The ordering of the steps is, therefore, ordinary and conventional. Appeal 2021-002933 Application 15/859,538 14 As to the structural claims (11-19), they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] . . . against” interpreting § 101 “in ways that make patent eligibility ‘depend simply on the draftsman’s art.’” Alice, 573 U.S. at 226 (quoting Mayo, 566 U.S. at 72). As a corollary, the claims are not directed to any particular machine. We have reviewed all the arguments Appellant has submitted concerning the patent eligibility of the claims before us that stand rejected under 35 U.S.C. § 101 (Appeal Br. 39-48; Reply Br. 41-50). We find that our analysis above substantially covers the substance of all the arguments, which have been made. But, for purposes of completeness, we will address various arguments in order to make individual rebuttals of same. Appellant argues: In other words, in order to fall within the grouping of mental processes, the claims would need to recite “an observation, evaluation, judgment, [or] opinion.” Revised Guidance, Section I. Applicant respectfully submits that the claims do not recite an observation, evaluation, judgment, or opinion. Additionally, the Office does not indicate which sub-category the Office alleges the claims fall under. Applicant respectfully submits that this is because the claims do not fall under any of the sub-categories and, therefore, does not fall under the “mental processes” grouping. Appeal Br. 42 (emphasis omitted). We disagree with Appellant that claim 1 fails to recite “an observation, evaluation, judgment, or opinion.” Claim 11 explicitly recites, “decompressing the healthcare enterprise system, thereby increasing Appeal 2021-002933 Application 15/859,538 15 availability of the at least one medical resource, wherein the at least one medical resource is based on at least one of: a severity of injury from the event and a symptom from the event.” The Specification cites as an example of “decompressing,” “notify[ing] staff coordinating patient discharge so that a patient ready to leave the care facility may be discharged earlier.” Spec. ¶ 42. We find that the process of determining who among a population of patients may or may not be ready to be discharged or ready to leave a hospital constitutes at least, an evaluation. Also, the Examiner’s characterization of claim 1 is, in our view, fully consistent with the Specification, including the claim language. That the claim includes more words than the phrase the Examiner used to articulate the abstract idea, and that the Examiner, thus, articulates the abstract idea at a higher level of abstraction than would Appellant is an insufficient basis to persuasively argue that the claim language has been mischaracterized or that the Examiner has failed to consider the claim as a whole. See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016) (“An abstract idea can generally be described at different levels of abstraction.”) Appellant argues, for a human to keep track, within the human mind, of all interactions that occur between a customer and supplier would be very difficult . . . a human may think of a single or smaller medical event, but would not process this interaction, particularly in terms of the entire needs for multiple identified needs, their varying degree of required care, and in light of available resources immediately available as further identified within the claimed limitations. (Appeal Br. 42-43). Appeal 2021-002933 Application 15/859,538 16 We disagree with Appellant. Appellant here has not provided evidence showing that a human “would not process this interaction,” in that the claimed computations cannot be made by human interaction using a pen and paper. To the extent that Appellant is arguing the primacy of a computer, in the execution of the claimed process, we find that the claim recites its process using nothing other than the ordinary capabilities of a general purpose computer. As early as Parker v. Flook, the Supreme Court held that calculations, while “primarily useful for computerized calculations producing automatic adjustments in alarm settings,” “can [still] be made by pencil and paper calculations.” Parker, 437 U.S. at 586. As such, the Court did not deem the alleged primacy of computer implementation to be persuasive in its 35 U.S.C. § 101 analysis. Again, Appellant here has not produced evidence showing that the claimed computations cannot be made by human interaction using a pen and paper. Appellant also argues, the claims include “wherein the at least one medical resource is based upon the predetermined time frame.” Claim 1. Again, this is not something that would be performed in the human mind. In other words, a human would not calculate and identify and perform an action relating to a medical resource in real-time in a medical scenario. (Appeal Br. 43). We disagree with Appellant. Although “[t]he claims in this case specify what information . . . is desirable to gather, analyze, and display, including in “real time”; but they do not include any requirement for performing the claimed functions of gathering, analyzing, and displaying in real time by use of anything but entirely conventional, generic technology.” Appeal 2021-002933 Application 15/859,538 17 Elec. Power Grp., 830 F.3d at 1356 (emphasis added). “Applicant respectfully submits that the claims create a system and method to allocate an indicated need in an unconventional manner.” (Appeal Br. 47). We disagree with Appellant because the purported claimed solution according to claim 11, only requires the use of a processor, and at least one sensor, and a memory device, operating in their ordinary and conventional capacities. See supra; see also Alice, 573 U.S. at 224-26. The Appellant does not, and cannot, claim to have invented these devices. The “focus” of the claim is not “on the specific asserted improvement in computer capabilities” (Enfish, 822 F.3d at 1336) or on the debit card or network itself (see Smart Sys. Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364, 1372 (Fed. Cir. 2017), but rather on using the a processor, at least one sensor, and a memory device as tools to implement the abstract idea in the particular field of medical resource allocation. Appellant argues, “that the claims represent an inventive concept, as the claims when analyzed in combination and as a whole, adds a specific limitation or combination of limitations that are not well-understood, routine, conventional activity in the field, which is indicative of an inventive concept.” (Appeal Br. 48). We disagree with Appellant. In support of this assertion Appellant recites on page 48 of the Appeal Brief, the steps of, “determining that the indicated need is unavailable,” “identifying, based upon the indicated need being unavailable, at least one action to be performed,” “and performing the at least one action.” None of these limitations are additional element device limitations, but rather are abstractions. As such, these features cannot Appeal 2021-002933 Application 15/859,538 18 constitute the “inventive concept.” Berkheimer v. HP Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J., concurring) (“It is clear from Mayo that the ‘inventive concept’ cannot be the abstract idea itself, and Berkheimer . . . leave[s] untouched the numerous cases from this court which have held claims ineligible because the only alleged ‘inventive concept’ is the abstract idea.”); see also BSG Tech. LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.”). For the reasons identified above, we will sustain the Examiner’s § 101 rejection of claims 1-20. 35 U.S.C. § 103 REJECTION Each of independent claims 1, 11, and 20 recites in one form or another, identifying, based upon the indicated need being unavailable, at least one action to be performed to supply the at least one medical resource, wherein the at least one medical resource is based upon the predetermined time frame based upon the influx of unpredicted medical patients, wherein the at least one action comprises finding a patient ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need. Concerning the rejection of claims 1-3, 9, 11-13, 18, and 20 under 35 U.S.C. §103 as being unpatentable over Coulter in view of Gutfraind, the Examiner found concerning this limitation that Coulter discloses: identifying, based upon the indicated need being unavailable, at least one action to be performed to supply the Appeal 2021-002933 Application 15/859,538 19 at least one medical resource ([0060]: e.g., identify patient for discharge, search for alternative beds, etc.), wherein the at least one medical resource is based upon the predetermined time frame (per [0054]-[0055] above, the unavailable medical resource is based upon the predetermined time frame)... wherein the at least one action comprises finding a patient ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need (again, [0060] discusses identifying a patient candidate for discharge which amounts to finding a patient “ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need”). (Final Act. 15). Appellant argues, in Coulter, [i]f no Suitable patient candidate is available for discharge, bed plan module 30 searches for an alternative bed using a predetermined mapping of possible transfers to another unit, i.e., a unit other than the originally suggested interior unit (e.g. from ICU to a Surgical unit, or from the operating room (OR) unit to a trauma unit) Coulter at [0060]. In other words, Coulter discloses a method and system to allocate patient space at a facility. Thus, Applicant respectfully submits that Coulter discloses a system for movement of patients. Accordingly, Applicant respectfully submits that Coulter fails to disclose the claimed limitations. (Appeal Br. 54) (emphasis omitted). We agree with Appellant. Paragraphs 54 and 55 of Coulter do not explicitly disclose “wherein the at least one medical resource is based upon the predetermined time frame.” At best, Coulter at paragraph 55 discloses “specific decision function to determine if/when preparation of a resource (e.g., a bed) in an interior unit of the facility for a patient presently in the ED unit should be started.” But, the disclosed “if/when” condition for determining when the preparation of a resource should be stated does not Appeal 2021-002933 Application 15/859,538 20 qualify as a predetermined time frame. It is not apparent and the Examiner has not explained how one is the obvious variant of the other. Therefore, we will not sustain the rejection of independent claims 1, 11 and 20. Since claims 2-10 and 12-20 depend from claims 1 and 11, respectively, and since we cannot sustain the rejection of claims 1 and 11, the rejection of claims 2-10 and 12-20 likewise cannot be sustained. Concerning the rejection of claims 1, 6-8, 11, 16, 17, and 20 under 35 U.S.C. §103 as being unpatentable over Conry in view of Gutfraind and Coulter, the Examiner found in part, concerning the limitation cited above, Coulter teaches ([0060] that it was known in the healthcare informatics art to identify an action to supply an unavailable need by identifying a patient candidate for discharge which amounts to ‘finding a patient ready to be stepped down in care who is currently utilizing the at least one medical resource identified as the indicated need. (Final Act. 24). We disagree with the Examiner because the full limitation requires “finding a patient ready to be stepped down” “based upon the predetermined time frame based upon the influx of unpredicted medical patients.” As we found above, the disclosed “if/when” condition for determining when the preparation of a resource should be stated does not qualify as a predetermined time frame. It is not apparent and the Examiner has not explained how the “if/when” condition of Coulter can be modified into the predetermined time frame disclosure of Conry. Therefore, we will not sustain the rejection of independent claims 1, 11 and 20. Since claims 6-8 and 12-19 depend from claims 1 and 11, respectively, and since we cannot sustain the rejection of claims 1 and 11, the rejection of claims 6-8 and 12-19 likewise cannot be sustained. Appeal 2021-002933 Application 15/859,538 21 CONCLUSIONS OF LAW We conclude the Examiner did not err in rejecting claims 1-20 under 35 U.S.C. § 101. We conclude the Examiner erred in rejecting claims 1-20 under 35 U.S.C. § 103. Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner’s decision is affirmed. See 37 C.F.R. § 41.50(a)(1). DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-20 101 Eligibility 1-20 1-3, 9, 11-13, 18, 20 103 Coulter, Gutfraind 1-3, 9, 11-13, 18, 20 4, 14 103 Coulter, Gutfraind, Amarasingham 4, 14 5, 15 103 Coulter, Gutfraind, Jourdan 5, 15 10, 19 103 Coulter, Gutfraind, Allen 10, 19 1, 6-8, 11, 16, 17, 20 103 Conry, Gutfraind, Coulter 1, 6-8, 11, 16, 17, 20 Overall Outcome 1-20 Appeal 2021-002933 Application 15/859,538 22 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED