DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claims 1-3, 7, 11-12, 18, 21-22, 27, and 41-43 have been amended. Claims 4-6, 8-10, 14-17, 19-20, 24-26, 28-30, 34-35, 39-40 and 44-45 were previously cancelled. Claims 1-3, 7, 11-13, 18, 21-23, 27, 31-33, 36-38 and 41-43 are pending.
Claims 1-3, 7, 11-13, 18, 21-23, 27, 31-33, 36-38 and 41-43 are rejected for the reasons detailed below.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claims 11-13, 18 and 36-38 are rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter.
The claim(s) does/do not fall within at least one of the four categories of patent eligible subject matter because Claims 11-13, 18 and 36-38 are drawn to a “computer program product,” which does not distinguish Claims 11-13, 18 and 36-38 from a transitory medium or article of manufacture, and hence Claims 11-13, 18 and 36-38 do not fall within the four statutory categories.
Claims 1-3, 7, 11-13, 18, 21-23, 27, 31-33, 36-38 and 41-43 are rejected under 35 U.S.C. 101 because the claimed invention is directed to a judicial exception (i.e., a law of nature, a natural phenomenon, or an abstract idea) without significantly more.
Claims 1-3, 7 and 41-43 are drawn to a method for medical intelligence which is within the four statutory categories (i.e. process). Claims 11-13, 18 and 36-38 are drawn to a “computer program product,” which does not distinguish Claims 11-13, 18 and 36-38 from a transitory medium or article of manufacture, and hence Claims 11-13, 18 and 36-38 do not fall within the four statutory categories. Assuming Applicant amends to rectify claims 11-13, 18 and 36-38, they would fall under the statutory category of manufacture. Claims 21-23, 27 and 31-33 are drawn to a system for medical intelligence which is within the four statutory categories (i.e. machine).
Claims 1-3, 7 and 41-43 (Group I) recite a method:
Monitoring, by a telehealth system (MPEP § 2106.05 (f), apply it), a telehealth medical encounter between a patient and a medical entity, the telehealth medical encounter being a virtual medical consultation conducted via a telehealth process, wherein the telehealth system includes hardware and software specifically configured to support remote telehealth consultations between patients and the medical entity over a telecommunications network (MPEP § 2106.05 (f), apply it);
Receiving, by the telehealth system (MPEP § 2106.05 (f), apply it), an image of the patient captured during the telehealth medical encounter;
comparing, using a machine learning (ML) model of the telehealth system (MPEP § 2106.05 (f), apply it) during the telehealth medical encounter without initiation by a human user, the image of the patient to images of known ailments or conditions to identify a visual indication of a potential ailment or condition within the image; and
displaying, via a user interface of the telehealth system in response to identification of the visual indication by the human user, the image of the patient and a transparent overlay of image-based content information (MPEP § 2106.05 (f), apply it and MPEP § 2106.05 (g), insignificant extra-solution activity), wherein the transparent overlay of the image-based on content information identifies the visual indication of the potential ailment of condition within the image; and
automatically initiating, by the telehealth system in response to identification of the visual indication, a third-party entity to join the telehealth medical encounter.
The bolded limitations, given the broadest reasonable interpretation, cover a certain method of organizing human activity because it fundamental economic practices, commercial or legal interactions, and/or managing personal behavior or relationships or interactions between people. Any limitations not identified above as part of the abstract idea are underlined and are deemed “additional elements,” and will be discussed in further detail below.
Furthermore, the abstract idea for Claims 11-13, 18, 21-23, 27, 31-33 and 36-38 is identical as the abstract idea for Claims 1-3, 7 and 41-43 (Group I). Claim 11 further recites a “computer program product residing on a computer readable medium having a plurality of instructions stored thereon which, when executed by a processor…” (MPEP § 2106.05 (f), apply it)) and Claim 21 further recites a “computing system including a processor and memory configured to perform operations…” (MPEP § 2106.05 (f), apply it), which are both deemed to be additional elements recited at an apply it level. Examiner notes that claims 11-13, 18 and 36-38 do not fall within one of the four statutory categories as it can be interpreted as software per se.
Dependent Claims 2-3, 7, 12-13, 18, 22-23, 27, 31-33, 36-38 and 41-43 include other limitations, for example Claims 2, 12 and 22 recite wherein the medical entity includes is a medical professional; Claims 3, 13 and 23 recite wherein the telehealth medical encounter includes one or more of: an intake portion; a consultation portion; and a follow-up portion, Claim 7 recites comparing, using the ML model (MPEP § 2106.05 (f), apply it) during the telehealth medical encounter, the image of the patient to a previous image of the patient to determine if the potential ailment or condition has changed, wherein the previous image of the patient was captured during a previous telehealth encounter between the patient and the medical entity , Claim 18 recites wherein generating image-based content information via artificial intelligence includes: comparing the image-based content to image-based information associated with one or more ailments / conditions to identify one or more potential ailments / conditions, Claim 22 recites wherein the medical entity includes one or more of: a medical professional; and a medical virtual assistant, Claim 23 recites wherein the telehealth medical encounter includes one or more of: an intake portion; a consultation portion; and a follow-up portion, Claim 27 recites comparing, by the ML model during the telehealth medical encounter, the image of the patient to a previous image of the patient to determine if the potential ailment or condition has changed, wherein the previous image of the patient was captured during a previous telehealth encounter between the patient and the medical entity, Claims 31, 36 and 41 recite wherein the potential ailment or condition is skin cancer, Claims 32, 37 and 42 recite wherein the image of the patient is an image of a mole on the patient, Claims 33, 38 and 43 recite wherein the images of the known ailments or conditions include pictures of known cancerous moles on individuals other than the patient, but these only serve to further limit the abstract idea, and hence are nonetheless directed towards fundamentally the same abstract idea as independent Claims 1, 11 and 21.
Furthermore, Claims 1-3, 7, 11-13, 18, 21-23, 27, 31-33, 36-38 and 41-43 are not integrated into a practical application because the additional elements (i.e. the limitations not identified as part of the abstract idea) amount to no more than limitations which:
amount to mere instructions to apply an exception – for example, the recitation of a telehealth system including hardware and software, a machine learning model, a telecommunications network, a computer program product, computer readable medium, processor and memory, which amounts to merely invoking a computer as a tool to perform the abstract idea, e.g. see paragraphs [0036-0037], [0039], [0108], [0118] and [0170] of the present Specification, see MPEP 2106.05(f)
add insignificant extra-solution activity to the abstract idea – for example, the recitation of displaying data on a user interface, which amounts to an insignificant application, see MPEP 2106.05(g); and
generally link the abstract idea to a particular technological environment or field of use (e.g., computers, user interfaces), see MPEP 2106.05(h).
Furthermore, the Claims do not include additional elements that are sufficient to amount to “significantly more” than the judicial exception because, the additional elements (i.e. the elements other than the abstract idea) amount to no more than limitations which:
amount to elements that have been recognized as well-understood, routine, and conventional activity in particular fields, as demonstrated by:
The Specification expressly disclosing that the additional elements are well-understood, routine, and conventional in nature:
paragraphs [0036], [0039] and [0170] of the Specification discloses that the additional elements (i.e. computer program product, computer readable medium, user interface, processor and memory, transparent overlay display) comprise a plurality of different types of generic computing systems that are configured to perform generic computer functions that are well-understood, routine, and conventional activities previously known to the pertinent industry (i.e. healthcare).
Relevant court decisions: The following are examples of court decisions demonstrating well-understood, routine and conventional activities, e.g. see MPEP 2106.05(d)(II):
Outputting data, e.g. see Mayo, 566 U.S. at 79, 101 USPQ2d at 1968; OIP Techs., Inc. v. Amazon.com, Inc. 788 F.3d 1359, 1363, 115 USPQ2d 1090, 1092-93 (Fed. Cir. 2015) (presenting offers and gathering statistics amounted to mere data gathering)– similarly, the current invention merely recites the outputting the results for a virtual medical encounter.
Thus, taken alone, the additional elements do not amount to “significantly more” than the above-identified abstract idea. Furthermore, looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually, and there is no indication that the combination of elements improves the functioning of a computer or improves any other technology, and their collective functions merely provide conventional computer implementation.
Therefore, whether taken individually or as an ordered combination, Claims 1-3, 7, 11-13, 18, 21-23, 27, 31-33, 36-38 and 41-43 are nonetheless rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Response to Arguments
Applicant's arguments filed 05/19/2026 have been fully considered.
Claim Rejections under 35 U.S.C. § 101
Applicant asserts “that a person of ordinary skill in the art (POSITA) would appreciate that the claimed approach improves the functioning of the underlying telehealth systems - which is a ‘technology-based virtual platform’ that is necessarily rooted in computer technology (Remarks, page 9).” Examiner maintains that the devices that are part of the telehealth system are not improved as a result of the claimed invention. Paragraph [0108] states that the telehealth system “may include various components, examples of which may include but are not limited to: a personal computer, a server computer, a series of server computers, a mini computer, a mainframe computer, one or more Network Attached Storage (NAS) systems, one or more Storage Area Network (SAN) systems, one or more Platform as a Service (PaaS) systems, one or more Infrastructure as a Service (IaaS) systems, one or more Software as a Service (SaaS) systems, one or more software applications, one or more software platforms, a cloud-based computational system, and a cloud-based storage platform.” None of these components are improved as a result of the claimed invention as they are recited at an “apply it” level. Any improvement resulting from the claims is an improvement to the abstract idea itself.
Regarding i), Applicant asserts that the “challenge addressed by amended claim 1 does not arise from how medical professionals choose to practice medicine, but rather from the inherent technical constraints of telehealth systems themselves namely, that such systems mediate diagnosis through digital images and remote telehealth consultations rather than physical examination (Remarks, page 10).”
The problem being solved by the claimed invention is not inherently technical, rather the problem is particular to the business of healthcare as described in the instant specification [0003-0004]. The problem being addressed by the claimed invention relates to the convenience or lack thereof in visiting a doctor or medical professional in person, and rather using telehealth instead as a more convenient method for the patient and the doctor. The claimed invention does not improve the devices that are used to implement the abstract idea. Furthermore, there is not a technical solution that results from the claimed invention.
Second, Applicant asserts “even assuming arguendo the Examiner's framing accurately characterizes the underlying "challenge" as a business/professional challenge, the claimed approach is nevertheless patent-eligible under DDR Holdings - which makes clear that a claimed solution that addresses a business challenge is patent-eligible under Step 2A, Prong Two provided that the business challenge is necessarily rooted in an underlying computer technology (Remarks, page 10).” Claiming what is being displayed as a result of the analysis does not show that the claimed invention is “necessarily rooted in an underlying computer technology” as alleged by Applicant. The Examiner maintains that any improvement resulting from the claims is to the abstract idea itself and is not rooted in technology.
Regarding ii), Applicant states that “claim 1 has been amended to recite ‘the telehealth system includes hardware and software specifically configured to support remote telehealth consultations between patients and the medical entity over a telecommunications network’” and “that the claimed ‘telehealth system’ is not abstract on the face of amended claim 1.” The rejection has been updated to reflect that the amendments to telehealth system are considered additional elements, and therefore, not considered abstract. However, it is maintained that these components are recited at an “apply it” level and do not result in an integration of the recited abstract idea.
Regarding iii), Applicant rebuts the assertion that “does not improve the internal functioning of a machine learning (ML) model” and Ex parte Desjardins was misapplied (Remarks, page 11). The machine learning model is recited at a high level. Furthermore, the model used is described at a high level in the instant disclosure, with the disclosure stating “[a]s known in the art, a machine learning model may generally include….(see [0132]).” The instant disclosure does not appear to describe a problem with the machine learning algorithms that is “solved” as a result of the claimed invention. Neither the claims nor the disclosure provides any details as to the type of machine learning model that is used in the claims. It is not apparent from the disclosure what technical problem the claimed invention is solving with respect to the claimed invention.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Rachelle Reichert whose telephone number is (303)297-4782. The examiner can normally be reached M-F 9-5 MT.
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/RACHELLE L REICHERT/Primary Examiner, Art Unit 3686
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