Whitsitt, Greg et al.

Patent Trials and Appeals Board

Sep 18, 2019

14258338 - (D) (P.T.A.B. Sep. 18, 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.
14/258,338 04/22/2014 Greg Whitsitt 27098.204057 5690
46169 7590 09/18/2019
SHOOK, HARDY & BACON L.L.P.
(Cerner Corporation)
Intellectual Property Department
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
EXAMINER
MORGAN, ROBERT W
ART UNIT PAPER NUMBER
3626
NOTIFICATION DATE DELIVERY MODE
09/18/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
BPARKERSON@SHB.COM
IPRCDKT@SHB.COM
docketing.shb@clarivate.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GREG WHITSITT, MICAH WHITACRE, and
ANDREW OLSON
____________

Appeal 2018-0079081
Application 14/258,338
Technology Center 3600
____________

Before HUBERT C. LORIN, NINA L. MEDLOCK, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–20, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision references Appellant’s Appeal Brief (“App. Br.,” filed
January 16, 2018) and Reply Brief (“Reply Br.,” filed July 31, 2018), and
the Examiner’s Answer (“Ans.,” mailed May 31, 2018) and Final Office
Action (“Final Act.,” mailed February 1, 2017).
2 Appellant identifies “Cerner Innovation, Inc.” as the real party in interest.
App. Br. 3.
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CLAIMED INVENTION
Appellant’s claimed invention relates to “synchronizing healthcare
data across multiple, disparate data centers.” Spec. ¶ 5.
Claims 1, 11, and 17 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations and indentation added, is
illustrative of the claimed subject matter:
1. A computer-implemented system for synchronizing
healthcare data across geographically-disparate data centers, the
computer-implemented system comprising:
[a] a data collector service operable to:
[b] receive healthcare data from a plurality of healthcare data
sources, and
[c] communicate the healthcare data to a first staging
platform associated with a first data center, wherein the first
data center is remote from the plurality of health care data
sources;
[d] the first staging platform associated with the first data
center operable to:
[e] store the healthcare data in association with a first long-
term storage data store located at the first data center;
[f] communicate the healthcare data to one or more
processing nodes associated with the first data center; and
[g] communicate the healthcare data to a second staging
platform associated with a second geographically-disparate data
center,
[h] the second staging platform operable to
[i] store the healthcare data in association with a second
long-term storage data store located at the second data center
and
[j] communicate the healthcare data to one or more
processing nodes associated with the second data center.

REJECTIONS
1. Claims 1–20 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
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2. Claims 1–20 are rejected under 35 U.S.C. § 103 as unpatentable
over Bormann et al. (US 2005/0071194 A1, pub. Mar. 31, 2005) and Joao
(US 2002/0032583 A1, pub. Mar. 14, 2002).

ANALYSIS
Patent-Ineligible Subject Matter
Appellant argues claims 1–20 as a group (see Appeal Br. 11–27; see
also Reply Br. 2–9). We select independent claim 1 as representative.
Claims 2–20 stand or fall with independent claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Under 35 U.S.C. § 101, 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.”
See id. 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.”).
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Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 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
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 192
(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 (Gottschalk, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Mayo/Alice 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, 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.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). Under that guidance, we
first look to whether the claim recites:
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(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); and
(2) additional elements that integrate the judicial exception into a
practical application, i.e., that “apply, rely on, or use the judicial exception
in a manner that imposes a meaningful limit on the judicial exception, such
that the claim is more than a drafting effort designed to monopolize the
judicial exception.” See 2019 Revised Guidance, 84 Fed. Reg. at 53; see
also MPEP § 2106.05(a)–(c), (e)–(h).
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, 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.
See 2019 Revised Guidance, 84 Fed. Reg. at 56.
On pages 11–14 of the Appeal Brief, Appellant discusses Supreme
Court and Federal Circuit cases generally, without specifically addressing
the case before us on appeal.
Next, Appellant argues that the Examiner’s rejection is in error
because the Examiner fails to establish a prima facie case of subject matter
ineligibility (see Appeal Br. 14–17 and 21–23; see also Reply Br. 2–8).
Appellant’s arguments are not persuasive.
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In rejecting the pending claims under 35 U.S.C. § 101, the Examiner
analyzes the claims using the Mayo/Alice two-step framework (see Final
Act. 14–17; see also Ans. 16–24). The Examiner states that independent
claim 1 recites that
healthcare data is received from a plurality of healthcare sources,
organized and stored using a first and a second staging platform,
both of which are associated with geographically disparate data
centers, and communicated and/or transmitted to either said first
or second staging platforms based on processing nodes
associated with their respective data centers.

(Final Act. 15). The Examiner considers this to be an abstract idea,
inasmuch as it is similar to abstract ideas identified by the Federal Circuit,
including the abstract idea of “using categories to organize, store and
transmit information” in Cyberfone Systems v. CNN Interactive Group,
558 F. App’x 988 (Fed. Cir. 2014) and the abstract idea of “collecting
information, analyzing it, and displaying certain results of the collection and
analysis” in Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed.
Cir. 2016) (see Ans. 16; see also Final Act. 15). See also Ans. 22 (citing
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed.
Cir. 2011)). The Examiner further states that independent claim 1 does not
include additional elements or a combination of elements sufficient to
transform the claim into a patent-eligible application of the abstract idea (see
Final Act. 15; see also Ans. 16–18). The Examiner, thus, has followed the
two-part framework specified by the Supreme Court in Mayo/Alice
consistent with Office guidelines.
In this regard, the Examiner has articulated the reasons for the
rejection and has notified Appellant of the reasons for the rejection “together
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with such information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application.” 35 U.S.C.
§ 132.3 And we find that, in doing so, the Examiner sets forth a prima facie
case of subject matter ineligibility. See In re Jung, 637 F.3d 1356, 1362
(Fed. Cir. 2011); Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990)
(Section 132 “is violated when a rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection.”). And, when viewed through the lens of the 2019 Revised
Guidance, the Examiner’s analysis depicts the claimed subject matter as one
of the ineligible “methods of organizing human activity” or “[m]ental
processes” under Prong One of Revised Step 2A. See 2019 Revised
Guidance, 84 Fed. Reg. at 51–52.
We note the Appellant’s argument in the Reply Brief that the
Examiner erred by identifying multiple or alternative abstract ideas in the
claims (Reply Br. 5). That argument is not persuasive of Examiner error
because a claim can include numerous distinct abstract ideas, and a single
abstract idea can be characterized using different words or phrases. See
Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016) (“An
abstract idea can generally be described at different levels of abstraction. As
the Board has done, the claimed abstract idea could be described as
generating menus on a computer, or generating a second menu from a first
menu and sending the second menu to another location. It could be described

3 Indeed, Appellant acknowledges that “in the Response to Argument
section, the Office provides additional detail regarding the rationale behind
the rejection.” App. Br. 16 (citing Final Act. 14–17).
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in other ways, including, as indicated in the specification, taking orders from
restaurant customers on a computer.”).
In response to the Examiner’s determination, Appellant argues that the
claims are not directed to an abstract idea pursuant to the Federal Circuit
decision in Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)
(App. Br. 20). More particularly, Appellant argues that “the Office has
failed to present a rationale which can be applied to the present claims but
still distinguishes against the unquestionably allowable claims in Enfish”
(id.).
However, there is a fundamental difference between computer
functionality improvements, on the one hand, and uses of existing computers
as tools to perform a particular task, on the other (see, e.g., Spec.¶¶ 18–19).
Indeed, the Federal Circuit applied this distinction in Enfish in rejecting a
§ 101 challenge at the step one stage of the Mayo/Alice analysis because the
claims at issue focused on a specific type of data structure, i.e., a self-
referential table for a computer database, designed to improve the way a
computer carries out its basic functions of storing and retrieving data, and
not on asserted advances in uses to which existing computer capabilities
could be put. Enfish, 822 F.3d at 1335–36.
We find no parallel here between independent claim 1 and the claims
in Enfish nor any comparable aspect in claim 1 that represents “an
improvement to computer functionality.” Instead, we agree with the
Examiner that here “[t]here is no indication that the combination of elements
improves the functioning of a computer or improves any other technology.”
(Final Act. 17; Ans. 18). Here, the Specification, including the claim
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language, make clear that the claims focus on an abstract idea, and not on
any improvement to computer technology and/or functionality.
The Specification is titled “SYNCHRONIZATION OF
HEALTHCARE DATA ACROSS DISPARATE DATA CENTERS,” and
states that “there has been a dramatic increase in the number of computer
application solutions that utilize healthcare data to generate outcome data
that is relevant to clinicians and patients” (Spec. ¶ 1). The Specification
identifies several problems faced by healthcare operating platforms, for
example, that “a computing solution that utilizes a defined set of healthcare
data from a healthcare data source may be located at a first data center, and
another solution that requires the same set of healthcare data may be located
at a second geographically-disparate data center” (id. ¶ 2). This scenario can
result in increased data center hosting costs (id.) and loss of healthcare data
due to disasters occurring at the data center hosting the data (id. ¶ 3). To
solve these problems, the Specification describes “methods, systems, and
computer-readable media for synchronizing healthcare data across multiple,
disparate data centers” wherein “[h]ealthcare data sources such as, for
example, healthcare organizations upload their data to a data collector
service that is part of a cloud computing platform” and a “data collector
service acts as a front door to any number of different data centers” (id. ¶ 5).
According to the Specification, “[a]s the data collector service receives the
healthcare data it is placed in a staging platform associated with a first data
center that is hosting the collector service” (id.).
Consistent with this description, independent claim 1 recites broadly
“[a] computer-implemented system for synchronizing healthcare data across
geographically-disparate data centers” comprising “[a] a data collector
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service operable to” perform two steps including “[b] receive healthcare data
from a plurality of healthcare data sources,” and “[c] communicate the
healthcare data to a first staging platform associated with a first data center.”
Claim 1 further recites “[d] the first staging platform” is operable to perform
three steps including “[e] store the healthcare data . . . ,” [f] “communicate
the healthcare data to one or more processing nodes . . . ,” and
“[g] communicate the healthcare data to a second staging platform.”
Claim 1 further recites “[h] the second staging platform” is operable to
perform two steps including “[i] store the healthcare data . . .” and
“[j] communicate the healthcare data to one or more processing nodes . . .”
Claim 1 also recites “wherein the first data center is remote from the
plurality of health care data sources.”
Upon reviewing the Specification and the claim as whole, as
summarized above, we determine that independent claim 1 is directed
broadly to “synchronizing healthcare data across geographically-disparate
data centers.” Here, independent claim 1 receives information (i.e.,
healthcare data from a plurality of healthcare data sources (limitation [b])),
transmits information (i.e., the healthcare data to a first staging platform
associated with a first data center (limitation [c])), stores information (i.e.,
the healthcare data in association with a first long-term storage data store
located at the first data center (limitation [e])), transmits information (i.e.,
the healthcare data to one or more processing nodes associated with the first
data center (limitation [f])), transmits information (i.e., the healthcare data to
a second staging platform associated with a second geographically-disparate
data center (limitation [g])), stores information (i.e., the healthcare data in
association with a second long-term storage data store located at the second
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data center (limitation [i])), and transmits information (i.e., the healthcare
data to one or more processing nodes associated with the second data center
(limitation [j])).
The Federal Circuit has consistently held that abstract ideas include
the concepts of collecting data, analyzing the data, and displaying 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 (Fed. Cir. 2017) (identifying the abstract idea of collecting,
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); see also SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168
(Fed. Cir. 2018) (“As many cases make clear, even if a process of collecting
and analyzing information is ‘limited to particular content’ or a particular
‘source,’ that limitation does not make the collection and analysis other than
abstract.” (quoting Elec. Power Grp., 830 F.3d at 1353, 1355 (citing
cases))). Cf. 2019 Revised Guidance, 84 Fed. Reg. at 52–53.
We also note that the present claims are similar to certain
“unpatentable mental processes” that our reviewing courts have found patent
ineligible, such as “steps [that] can be performed in the human mind, or by a
human using a pen and paper” in CyberSource, 654 F.3d at 1372–73, and
“using an electronic device to obtain clinical trial data that would otherwise
be collected by pen-and-paper diary, and analyzing the data to decide
whether to prompt action” in eResearchTechnology, Inc. v. CRF, Inc.,
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186 F.Supp.3d 463, 473 (W.D. Pa. 2016), aff’d, 681 F. App’x 964 (mem)
(Fed. Cir. 2017) (citing OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1361–62 (Fed. Cir. 2015); Intellectual Ventures I LLC v. Symantec
Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (“[W]ith the exception of
generic computer-implemented steps, there is nothing in the claims
themselves that foreclose them from being performed by a human, mentally
or with pen and paper.”); Mortg. Grader, Inc. v. First Choice Loan Servs.
Inc., 811 F.3d. 1314, 1324 (Fed. Cir. 2016) (holding that computer-
implemented method for “anonymous loan shopping” was an abstract idea
because it could be “performed by humans without a computer”).
We note the Appellant’s argument in the Reply Brief that “the present
claims recite non-mental steps and features, such as specific characteristics
of specific structures such as data centers, staging platforms, and processing
nodes and how these structures interconnect and interact” (Reply Br. 9).
The difficulty with that argument is that, as discussed in detail below, the
only interconnection or interaction required by claim 1 is receiving, storing,
and transmitting data between generic computer components via some
unspecified communication medium. Cf. Versata Dev. Grp. v. SAP Am.,
Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have examined claims
that required the use of a computer and still found that the underlying,
patent-ineligible invention could be performed via pen and paper or in a
person’s mind.”).
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we turn to the second prong of step 2A of the 2019 Revised
Guidance and determine whether the claim recites a practical application of
the recited judicial exception. Here we look to see if, for example, any
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additional elements of the claim reflect (i) an improvement in the
functioning of a computer or to another technological field, (ii) an
application of the judicial exception with, or by use of, a particular machine,
(iii) a transformation or reduction of a particular article to a different state or
thing, or (iv) a use of the judicial exception in some other meaningful way
beyond generally linking the use of the judicial exception to a particular
technological environment. See 2019 Revised Guidance, 84 Fed. Reg. at 55;
See also MPEP § 2106.05(a)–(c), (e)–(h).
We find no indication in the Specification, nor does Appellant direct
us to any indication, that the operations recited in independent claim 1
invoke any assertedly inventive programming, require any specialized
computer hardware or other inventive computer components, i.e., a
particular machine, or that the claimed invention is implemented using other
than generic computer components to perform generic computer functions.
See DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir.
2014) (“[A]fter Alice, there can remain no doubt: recitation of generic
computer limitations does not make an otherwise ineligible claim patent-
eligible.”).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record, short of attorney
argument, that attributes any improvement in computer technology and/or
functionality to the claimed invention or that otherwise indicates that the
claimed invention “appl[ies], rel[ies] on, or us[es] the judicial exception in a
manner that imposes a meaningful limit on the judicial exception, such that
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the claim is more than a drafting effort designed to monopolize the judicial
exception.” See 2019 Revised Guidance, 84 Fed. Reg. at 53.
Turning to Step 2B of the of the 2019 Revised Guidance, we
determine whether the additional elements (1) add a specific limitation or
combination of limitations that is not well-understood, routine, and
conventional activity in the field, which is indicative that an inventive
concept may be present or (2) simply append well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exception, which is indicative that an
inventive concept may not be present. See 2019 Revised Guidance, 84 Fed.
Reg. at 56.
The Examiner determined that the claims merely include “[g]eneric
computer components recited as performing generic computer functions that
are well-understood, routine and conventional activities [and] amount to no
more than implementing the abstract idea with a computerized system” and
that “[l]ooking at the limitations as an ordered combination adds nothing that
is not already present when looking at the elements taken individually”
(Final Act. 16–17). The Examiner identified additional elements of claim 1
as including “a computer-implemented system,” “a data collector service,”
“a first staging platform,” “a first long-term storage data store,” “one or
more processing nodes,” “a second staging platform,” and “a second long-
term storage data store” (Ans. 17). According to the Examiner, the
additional elements “merely serve to link the abstract idea to a particular
technological environment and, when considered individually, perform
routine and conventional activities that are well-understood in the healthcare
data processing industry such as receiving data, transmitting data (i.e.,
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communicat[ing] healthcare data to staging platform(s)), storing data,
processing data, etc.” (id. at 18).
Appellant argues that “the Office fails to actually consider the
structural elements of the claimed system” and that “it is in these structural
elements where the inventive concept of this claimed invention can best be
appreciated” (App. Br. 23). According to Appellant, “the first and second
data centers are required to be geographically-disparate from one another
and remote from the healthcare data sources” and thus, Appellant contends
that “the system implemented in the invention is not merely routine and
conventional, but represents a distributed system for storage and processing
of healthcare data which, due to its distributed structure, provides functional
advantages to a healthcare enterprise” (id. at 25). Appellant contends that
“these elements are related to the expressed purpose of the invention;
synchronizing healthcare data across geographically-disparate data centers”
(id.). Appellant further argues that the pending claims, like the claims in
BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d
1341 (Fed. Cir. 2016), are patent-eligible because they provide “various
advantages including quick access to healthcare data, protection against
failure or loss of data, and low-latency processing” (id. at 26) (citing Spec.
¶ 5).
The first difficulty with Appellant’s argument is that the argued
improvements are not reflected in claim 1, and thus cannot be relied upon to
provide an inventive concept in claim 1. See Accenture Glob. Servs., GmbH
v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) (“[T]he
complexity of the implementing software or the level of detail in the
specification does not transform a claim reciting only an abstract concept
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into a patent-eligible system or method.”); see also Intellectual Ventures,
838 F.3d at 1322 (“The district court erred in relying on technological details
set forth in the patent’s specification and not set forth in the claims to find an
inventive concept” (citing Accenture, 728 F.3d at 1345; Content Extraction
& Transmission LLC v. Wells Fargo Bank, Nat. Ass’n, 116 F.3d 1343, 1346
(Fed. Cir. 2014))). Here, Appellant argues that the claims are patent-eligible
because they provide three benefits as set forth in paragraph 5 of the
Specification: (1) quick access to healthcare data, (2) protection against
failure or loss of data, and (3) low-latency processing (App. Br. 26). As to
the first improvement (“quick access to healthcare data”), paragraph 5 of
Appellant’s Specification discloses that “[t]he staging platform comprises
durable, short-term storage (e.g., a durable cache) which allows for quick
access to the healthcare data.” However, claim 1 does not recite any short-
term storage (or a durable cache).4 As to the second improvement,
(“protection against failure or loss of data”), paragraph 5 describes that data
loss is prevented because “data is durably replicated across multiple servers
in the staging platform.” However, claim 1 does not recite multiple servers
in either the first or second staging platform, nor does claim 1 call for
durably replicating any data. As to the third improvement, “low-latency
processing,” paragraph 5 describes that “the data is indexed such that it is

4 We note that dependent claim 4, which is not separately argued, recites “a
durable cache.” However, we do not see that the Specification discloses a
new type of durable cache. Rather, the Specification merely discloses that
“[t]he staging platform 238 comprises a durable cache that provides quick
access to the healthcare data.” Spec. ¶ 36. Appellant has not shown that
storing data in a generic data cache in order to provide “quick access” is
anything other than a well-understood, routine, and conventional practice in
the field of data storage.
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available for low-latency processing.” But claim 1 does not recite any index
or indexing. Therefore, Appellant’s arguments are unpersuasive at least
because they are not commensurate with the scope of claim 1.
Moreover, we do not agree that BASCOM is sufficiently analogous to
control the outcome here. In BASCOM, the Federal Circuit held that the
second step of the Mayo/Alice framework was satisfied because the claimed
invention “represents a ‘software-based invention[ ] that improve[s] the
performance of the computer system itself.’” BASCOM, 827 F.3d at 1351
(stating that like DDR Holdings, where the patent “claimed a technical
solution to a problem unique to the Internet,” the patent in BASCOM claimed
a “technology-based solution . . . to filter content on the Internet that
overcomes existing problems with other Internet filtering systems . . .
making it more dynamic and efficient”) (citations omitted).
Here, Appellant argues that independent claim 1 is patent-eligible
because it “represents a distributed system for storage and processing of
healthcare data” (App. Br. 25). We do not see how, and Appellant does not
persuasively explain how, Appellant’s claim 1 parallels the claims in
BASCOM, which recited a “non-conventional and non-generic arrangement
of known, conventional pieces” within a network, the arrangement of
elements being “a technical improvement over the prior art ways of
filtering.” BASCOM, 827 F.3d at 1350. Other than merely referring to the
system as “distributed,” Appellant provides no further argument as to how
the limitations recited in claim 1 effect an improvement to computer
technology, such as how the elements are arranged in a non-generic or
unconventional manner such that it is a technical improvement over prior art
ways of storing data in a “distributed” system. See BASCOM, 827 F.3d
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at 1351. Claim 1 does not require any specific arrangement of computer
components on a network. Indeed, claim 1 does not recite any network.
Claim 1 merely calls for a data collector service to collect and disseminate
information via first and second staging platforms. As described in the
Specification, the claimed data collector service can be implemented by a
generic server computer5 and the claimed communication may be
accomplished via any type of communications link.6 Cf. Intellectual
Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363, 1370 (Fed. Cir.
2015) (Holding that “the interactive interface limitation is a generic
computer element” that does not amount to an inventive concept because
“the ‘interactive interface’ simply describes a generic web server with
attendant software, tasked with providing web pages to and communicating
with the user’s computer.”).
Exemplary independent claim 1, unlike the claims found non-abstract
in prior cases, uses generic computer technology to store, process, and
transmit data, and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract

5 See Spec. ¶ 20 (“computing environment 100 comprises a computing
device in the form of a control server 102.”)
6 See Spec. ¶ 19 (“The present invention might be practiced in distributed
computing environments where tasks are performed by remote processing
devices that are linked through a communications network.”); id. ¶ 23
(“Computer networks 106 comprise local area networks (LANs) and/or wide
area networks (WANs). Such networking environments are commonplace in
offices, enterprise-wide computer networks, intranets, and the Internet.”); id.
(“[T]he network connections shown are exemplary and other means of
establishing a communications link between the computers (e.g., control
server 102 and remote computers 108) might be utilized.”).
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because they “focused on a specific asserted improvement in computer
animation”).
In this regard, we note that the functional limitations (i.e., first staging
platform, first data center, first long-term storage data store, one or more
processing nodes associated with the first data center, second staging
platform, second data center, second long-term storage data store, one or
more processing nodes associated with the second data center) for
performing the steps of receiving, storing, and transmitting data are routine
computer functions that may be performed by any computer system. See In
re Katz, 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower
construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ discussed
below, those functions can be achieved by any general purpose computer
without special programming”); Inventor Holdings, LLC v. Bed Bath &
Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that considering
claims reciting data retrieval, analysis, modification, generation, display, and
transmission as an “‘ordered combination’” reveals that they “amount to
‘nothing significantly more’ than an instruction to apply [an] abstract idea”
using generic computer technology) (internal citation omitted).
The Federal Circuit has held that “[t]he patent eligibility inquiry may
contain underlying issues of fact.” Berkheimer v. HP Inc., 881 F.3d 1360,
1365 (Fed. Cir. 2018) (quoting Mortg. Grader, 811 F.3d at 1325 (“The
§ 101 inquiry ‘may contain underlying factual issues.’”). “When there is no
genuine issue of material fact regarding whether the claim element or
claimed combination is well-understood, routine, [and] conventional to a
skilled artisan in the relevant field, this issue can be decided on summary
judgment as a matter of law.” Berkheimer, 881 F.3d at 1368; see also Aatrix
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Software, Inc. v. Green Shades Software, Inc., 890 F.3d 1354, 1368 (Fed.
Cir. 2018) (“A factual allegation or dispute should not automatically take the
determination out of the court’s hands; rather, there needs to be justification
for why additional evidence must be considered – the default being a legal
determination.”). Thus, evidence may be helpful where, for instance, facts
are in dispute, but evidence is not always necessary.
Here, Appellant has not persuaded us that a factual dispute has arisen
and evidence is necessary to resolve such a dispute. Appellant does not
dispute the Examiner’s specific determinations (see, e.g., Final Act. 16–17;
see also Ans. 22–23) that the claims contain generic computer components
which perform generic computer functions.7 Nor would there necessarily be
a genuine factual dispute had Appellant more specifically contested the
Examiner’s determination.
“In Berkheimer, there was such a genuine dispute for claims 4–7, but
not for claims 1–3 and 9.” Berkheimer v. HP Inc., 881 F.3d 1360, 1371
(Fed. Cir. 2018) (Moore, J., concurring).
[I]n accordance with Alice, we have repeatedly
recognized the absence of a genuine dispute as to eligibility for
the many claims that have been defended as involving an
inventive concept based merely on the idea of using existing
computers or the Internet to carry out conventional processes,
with no alteration of computer functionality.

Id. at 1373 (Moore, J., concurring). Here, independent claim 1 provides for
a “[a] computer-implemented system for synchronizing healthcare data

7 Rather, Appellant argues that portions of the Specification cited by the
Examiner are “irrelevant” because “the systems that are set out in the
specification are not recited in the claims” (Reply Br. 7).
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across geographically-disparate data centers” comprising “a data collector
service operable to” perform several functions including “receive . . . data,”
“communicate . . . data,” and “store . . . data.” As discussed above, all of
these functions are common to generic computers. “Taking the claim
elements separately, the function performed by the computer at each step [of
the process] . . . is ‘[p]urely conventional.”’ Alice, 573 U.S. at 225 (citing
Mayo, 566 U.S. at 81). “Considered ‘as an ordered combination,’ the
computer components of [Appellant’s] method ‘ad[d] nothing . . . that is not
already present when the steps are considered separately.’” Id. Cf.
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014)
(Stating “[t]hat a computer receives and sends the information over a
network – with no further specification – is not even arguably inventive.”);
Intellectual Ventures, 838 F.3d at 1321 (holding that using an intermediary
computer for forwarding information “is perfectly conventional”).
Appellant’s other arguments, including those directed to now
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R-08.2017 of the MPEP
(published Jan. 2018) should not be relied upon.”).) For example, quoting
the USPTO’s November 2, 2016 Memorandum to the Patent Examining
Corps,8 Appellant argues that the Examiner’s reliance on Cyberfone is
“contrary to current guidance and is thus erroneous” (App. Br. 17).
Appellant reproduces a portion of the memorandum indicating that

8 The memorandum is entitled “Recent Subject Matter Eligibility Decisions”
(available at https://www.uspto.gov/sites/default/files/documents/McRo-
Bascom-Memo.pdf).
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“examiners should avoid relying upon or citing non-precedential decisions
(e.g., SmartGene, Cyberfone) unless the facts of the application under
examination uniquely match the facts at issue in the non-precedential
decision” (id.). According to Appellant, “[t]he facts of the present
application do not uniquely match the facts at issue in Cyberfone.” As
discussed above, the 2016 USPTO Memorandum has been superseded by
the 2019 Revised Guidance, and therefore we need not decide whether claim
1 “uniquely matches the facts at issue” in Cyberfone.
In the Reply Brief, the Appellant argues for the first time that “the
Office has failed to present valid rejections of [the dependent] claims from
the outset” (Reply Br. 8). That argument is untimely because it was not
presented in the Appeal Brief, and the Appellant has not attempted to show
good cause for presenting it for the first time in the Reply Brief. See
37 C.F.R. § 41.41(b)(2). And, even if this argument had been presented in a
timely fashion, it would be unpersuasive because it does not specifically
identify an improvement, reflected in any particular dependent claim, which
might render the claimed subject matter patent-eligible.
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claim 1, and claims 2–20,
which fall with independent claim 1.

Obviousness
Appellant again argues claims 1–20 as a group (see Appeal Br. 27–29;
see also Reply Br. 2–9). We select independent claim 1 as representative.
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Claims 2–20 stand or fall with independent claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv).
We are not persuaded by Appellant’s argument that the Examiner
erred in rejecting independent claim 1 under 35 U.S.C. § 103(a) because the
combination of Bormann and Joao fails to disclose or suggest the subject
matter of that claim (see Appeal Br. 27–29; see also Reply Br. 9–11).
Instead, we agree with, and adopt, the Examiner’s findings and
rationales as our own (see Final Act. 4–7 (citing Bormann ¶¶ 2, 27, 29, 32–
36, 47, 48, 51–53, 56–59, 64, 65, 94, 125–130, 146, 151, and 179–181)).
We add the following discussion for emphasis.
Bormann is directed to “an information sharing architecture that
allows physically separate healthcare information systems, called
‘deployments,’ to share and exchange information.” (Bormann ¶ 27).
Bormann’s system “allows participants in the Community to share
information on data changes to these patients, and to reconcile concurrent
and conflicting updates to the patient’s record” (Id.). Bormann discloses that
“[t]he deployments 20–24 may be located, by way of example rather than
limitation, in separate geographic locations from each other, in different
areas of the same city, or in different states” (Id. ¶ 28). Bormann further
discloses:
Each record that is exchanged throughout the system may be
managed, or “owned,” by a specific deployment. The
deployment owning a record is referred to as the record’s
“home deployment.” When a record is accessed for the first
time from a deployment other than its home deployment,
referred to as a “remote deployment,” the home deployment
may send a copy of the record to the requesting remote
deployment. The remote deployment may send its updates to
the home deployment. The home deployment may coordinate
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the updates it receives from remote deployments by checking
for conflicting data, before publishing the consolidated updates
back to the Community of deployments. While the home
deployment may have greater responsibility for the records it
stores and manages there, it has no greater role in the general
system than do the other deployments.

(Id. ¶ 29).
Under heading number 1, and referring to the Examiner’s findings on
pages 4–5 of the Final Rejection, Appellant argues that “there is nothing
within this block of text that could reasonably be considered an articulation
of any reason that Bormann teaches or suggests the various features of the
presently claimed invention” (App. Br. 28). We are not persuaded that the
Examiner has erred. As discussed above, the cited portions of Bormann
clearly disclose synchronization of data across multiple deployments in
different geographical locations. Appellant does not identify any specific
limitation of claim 1 that is not disclosed in Bormann. In the absence of
specific arguments and technical reasoning, we do not see any merit in
Appellant’s argument that the Examiner’s findings are in error.
Appellant next argues, under heading number 2, that “[t]he
combination of references fails to teach or suggest ‘wherein the first data
center is remote from the plurality of health care data sources’” (App.
Br. 28). According to Appellant, Bormann’s “[h]ome deployment has a
physical location at a healthcare facility” and “[t]he present application is
directed to healthcare data located at a data center which is remote from any
healthcare facilities” (Id.). That argument is not persuasive of examiner
error at least because it is not commensurate with the scope of the claims.
Claim 1 does not require that the first data center is remote from any
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healthcare facilities. Rather, claim 1 recites “wherein the first data center is
remote from the plurality of health care data sources” (App. Br. 31 (Claims
Appendix)). Moreover, we do not see any indication in Bormann, nor does
Appellant direct us to any indication, that the home deployment is not
remote from a plurality of health care data source. See Bormann ¶ 28
(“deployments 20-24 may be located, by way of example rather than
limitation, in separate geographic locations from each other, in different
areas of the same city, or in different states.”); id. ¶ 30 (“all three
deployments 20–24 are peers, and each act[s] as home to a subset of the
system 10’s records. In other words, ‘home’ is merely an arbitrary
convention for discussion.”).
In view of the foregoing, we sustain the Examiner’s rejection of
independent claim 1 under 35 U.S.C. § 103(a). For the same reasons, we
also sustain the Examiner’s rejection of claims 2–20, which fall with
claim 1.

CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–20 § 101 1–20
1–20 § 103(a) Bormann,
Joao
1–20
Overall Outcome 1–20

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DECISION
The Examiner’s rejection of claim 1–20 under 35 U.S.C. § 101 is
affirmed.
The Examiner’s rejection of claims 1–20 under 35 U.S.C. § 103(a) is
affirmed.
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)(iv).

AFFIRMED