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 .
Notice to Applicant
This communication is in response to the Request for Continued Examination (RCE) filed 6/2/26. Claims 1, 8, 12, 16, 18, 19, 31, 33, 35, and 39 have been amended. Claim 40 is newly added. Claims 1-40 are pending.
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 6/2/26 has been entered.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-40 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-38 of U.S. Patent No. 11,728,030 in view of Ibikunle et al. (US 2015/0019254 A1). Although the claims at issue are not identical, they are not patentably distinct from each other because they recite substantially similar limitations. For example, note that the limitations of independent claim 1 of this application appear in independent claim 1 of the U.S. Patent. Claim 1 of this application differs by reciting the broader “health related software platform” as opposed to the “physician connection application” recited in the U.S. Patent. Furthermore, the ‘030 patent lacks “transmitting, by the first portable personal computing device, the plurality of health data elements to a server associated with the first portable personal computing device; prior to the live communication session, identifying, by the first portable personal computing device based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release; receiving, by the server, a request from the physician computing device; and outputting from the server to the physician“. Ibikunle teaches the aforementioned limitations (see Fig. 5, para. 12, 66, 68-70, 76 and 83 of Ibikunle). It would have been obvious to one of ordinary skill in the art, before the effective date, to combine the aforementioned features of Ibikunle with the ‘030 patent for an improved authentication and access system for personal health information (para. 1 of Ibikunle).
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 1-40 are rejected under 35 U.S.C. §101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1:
Claims 1-18 & 40 are directed to a method (i.e., a process) and claims 19-39 are directed to a system (i.e., a machine). Accordingly, claims 1-40 are all within at least one of the four statutory categories.
Step 2A - Prong One:
Regarding Prong One of Step 2A, the claim limitations are to be analyzed to determine whether, under their broadest reasonable interpretation, they “recite” a judicial exception or in other words whether a judicial exception is “set forth” or “described” in the claims. An “abstract idea” judicial exception is subject matter that falls within at least one of the following groupings: a) certain methods of organizing human activity, b) mental processes, and/or c) mathematical concepts.
Representative independent claim 1 includes limitations that recite at least one abstract idea. Specifically, independent claim 1 recites:
1. A method for facilitating a treatment and/or diagnosis of a patient in a live communication session, the method comprising:
prior to using a health related software platform for interfacing with a physician, receiving, with a first portable personal computing device of the patient, a plurality of health data elements relating to the patient including health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time exceeding a few days, the one or more sensor devices being communicatively coupled with the first portable personal computing device, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician, and wherein the one or more sensor devices are included in the first portable personal computing device and/or included within one or more wearable devices of the patient;
transmitting, by the first portable personal computing device, the plurality of health data elements to a server associated with the first portable personal computing device;
prior to the live communication session, identifying, by the first portable personal computing device based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release;
initiating the live communication session with a physician computing device of the physician with the portable computing device of the patient through the health related software platform stored and executed on the first portable personal computing device of the patient, wherein the physician computing device comprises a corresponding health related software platform stored and operable thereon by which the live communication session is conducted;
receiving, by the server, a request from the physician computing device, to retrieve relevant health data that includes the first subset of the plurality of health data elements in preparation for or during the live communication session, the first subset of data being associated with the treatment and/or diagnosis of the patient by the physician; and
outputting from the server to the physician during the live communication session, the first subset data that excludes a second subset platform so as to facilitate treatment and/or the diagnosis of the patient, wherein the plurality of health data elements, including the first subset output to the physician, are outside the electronic medical record of the patient.
The Examiner submits that the foregoing underlined limitations constitute “certain methods of organizing human activity” because prior to interfacing with a physician, receiving a plurality of health data elements relating to the patient including health data elements, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician; prior to the live communication session, identifying a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release; initiating the live communication session with the physician; receiving a request from the physician to retrieve relevant health data that includes the first subset of the plurality of health data elements in preparation for or during the live communication session, the first subset of data being associated with the treatment and/or diagnosis of the patient by the physician; and outputting to the physician during the live communication session, the first subset data that excludes a second subset so as to facilitate treatment and/or the diagnosis of the patient, wherein the plurality of health data elements, including the first subset output to the physician, are outside the electronic medical record of the patient amount to managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions), at the currently claimed high level of generality.
Accordingly, the claim recites at least one abstract idea.
Step 2A - Prong Two:
Regarding Prong Two of Step 2A, it must be determined whether the claim as a whole integrates the abstract idea into a practical application. It must be determined whether any additional elements in the claim beyond the abstract idea integrate the exception into a practical application in a manner that imposes a meaningful limit on the judicial exception. The courts have indicated that additional elements merely using a computer to implement an abstract idea, adding insignificant extra solution activity, or generally linking use of a judicial exception to a particular technological environment or field of use do not integrate a judicial exception into a “practical application.”
The limitations of claims 1 and 19, as drafted, is a process that, under its broadest reasonable interpretation, covers certain methods of organizing human activity but for the recitation of generic computer components. That is, other than reciting a software platform, a first portable personal computing device, a server, one or more sensors of one or more sensor devices, one or more wearable devices, a computing device, a wireless communication module, a database, a processor, and a computer readable medium to perform the limitations, nothing in the claim elements precludes the steps from practically being certain methods of organizing human activity. If a claim limitation, under its broadest reasonable interpretation, covers certain methods of organizing human activity but for the recitation of generic computer components, then it falls within the “certain methods of organizing human activity” grouping of abstract ideas. Accordingly, the claims recite an abstract idea.
This judicial exception is not integrated into a practical application. In particular, the software platform, first portable personal computing device, server, one or more sensors of one or more sensor devices, one or more wearable devices, computing device, wireless communication module, database, processor, and computer readable medium are recited at a high-level of generality (i.e., as generic computer components performing generic computer functions of receiving data, transmitting data, identifying data, collecting data, receiving inputs, and outputting data) such that it amounts no more than mere instructions to apply the exception using generic computer components. The claims recite the additional limitation of data elements automatically collected from one or more sensors of one or more sensor devices. Such steps would be routinely used by those of ordinary skill in the art and are well-understood, routine and conventional activities specified at a high level of generality. It is mere data gathering in conjunction with the abstract idea and therefore adds insignificant extrasolution activity to the judicial exception. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea.
Thus, taken alone, the additional elements do not amount to significantly more than the above-identified judicial exception (the abstract idea). Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. For instance, there is no indication that the additional elements, when considered as a whole, reflect an improvement in the functioning of a computer or an improvement to another technology or technical field, apply or use the above-noted judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implement/use the above-noted judicial exception with a particular machine or manufacture that is integral to the claim, effect a transformation or reduction of a particular article to a different state or thing, or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment, such that the claim as a whole is not more than a drafting effort designed to monopolize the exception (see MPEP § 2106.05). Their collective functions merely provide conventional computer implementation.
Claims 2-18 and 20-40 are ultimately dependent from Claim(s) 1 and 19 and include all the limitations of Claim(s) 1 and 19. Therefore, claim(s) 2-18 and 20-40 recite the same abstract idea. Claims 2-18 and 20-40 describe further limitations regarding receiving a selection of the physician from a plurality of physicians displayed; receiving an input as to a condition for which treatment and/or diagnosis is desired; authorizing release of the identified first subset of data to the physician based on a second user input received; wherein the second user input is different from the first user input; types of health data elements; types of sensor data; types of health metrics; obtaining glucose measurements; establishing communication; wherein the first subset of data is determined based on receiving of a categorical selection input by the physician; types of categories; type of patient attributes; receiving an instruction to the patient from the physician; access to the health elements; initiate communication with the physician in response to receiving a command input by the patient and/or a caretaker of the patient with the user input; allow selection; display a plurality of physicians; obtain sensor data; wherein at least some of the plurality of health data elements are not specific to a health condition being treated and/or diagnosed by the system; and wherein the first subset includes processed data representing a trend over time or an average derived from the plurality of the health data elements automatically collected over the duration of time. The computer components (e.g., graphical user interface, etc.) in the dependent claims are recited at a high-level of generality such that it amounts no more than mere instructions to apply the exception using generic computer components. These are all just further describing the abstract idea recited in claims 1 and 19, without adding significantly more.
The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. As discussed above with respect to integration of the abstract idea into a practical application, the additional elements amount to no more than mere instructions to apply the exception using generic computer components. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept. The claims are not patent eligible.
Step 2B:
Regarding Step 2B, representative independent claim 1 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 reasons the same as those discussed above with respect to determining that the claim does not integrate the abstract idea into a practical application.
Regarding the additional limitations directed to live communication with a physician computing device and a portable computing device, a server receiving a request, the portable computing device transmitting data to the server, and the server outputting data all of which the Examiner submits merely add insignificant extra-solution activity to the abstract idea or are claimed in a merely generic manner (e.g., at a high level of generality), the Examiner further submits that such steps are not unconventional as they merely consist of receiving and transmitting data over a network. See MPEP 2106.05(d)(II).
The dependent claims do 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 dependent claims do not integrate the at least one abstract idea into a practical application.
Therefore, claims 1-40 are ineligible under 35 USC §101.
Claim Objections
Claim 11 is objected to because of the following informalities: claim 11 recites “a server.” It is unclear if this is the same “server” recited in claim 1, or a different server. Appropriate correction is required.
Claims 1 and 19 are objected to because of the following informalities: change “a second subset” to “the second subset” in the last step of the claims. Appropriate correction is required.
Claims 22-25, 31, and 36 are objected to because of the following informalities: the claims recite “the processor.” However, it is unclear which “processor” is being referred to since there are two processors in independent claim 19. Appropriate correction is required.
Claim 1 is objected to because of the following informalities: delete “platform” in the last step of the claim. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 26 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 26 recites the limitation "the first set of data" in lines 4 & 5. There is insufficient antecedent basis for this limitation in the claim.
Claim 26 recites the limitation "the health information query" in line 4. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1, 3-11, 16-23, and 26-39 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ekeroth (WO 2012/173541 A1), in view of Schibuk (US 2009/0132813 A1), in view of Ibikunle et al. (US 2015/0019254 A1), and further in view of Conrad et al. (US 2014/0378777 A1).
(A) Referring to claim 1, Ekeroth discloses A method for facilitating a treatment and/or diagnosis of a patient in a live communication session, the method comprising (page 21, line 19 — page 22, line 4 of Ekeroth):
initiating the live communication session with a physician computing device of the physician with the portable computing device of the patient through the health related software platform stored and executed on the first portable personal computing device of the patient, wherein the physician computing device comprises a corresponding health related software platform stored and operable thereon by which the live communication session is conducted (see page 1, lines 14-21, page 4, lines 6-16, and page 21, line 19 — page 22, line 17 of Ekeroth; The e-health app is bundled with a collaborative workspace that patients and doctors can use to share media and data as well as run web application together, thus allowing them to experience a much richer communication than just plain voice.); outputting from the server to the physician during the live communication session, the first subset data so as to facilitate treatment and/or the diagnosis of the patient, wherein the plurality of health data elements, including the first subset output to the physician, are outside the electronic medical record of the patient (see page 1, lines 14-21 and page 21, line 19 — page 22, line 17 of Ekeroth; note that Alice is feeling worried about a skin rash on her youngest child. Instead of using regular telephony, she uses a health care app on her mobile used device. The e-health app is bundled with a collaborative workspace that patients and doctors can use to share media and data as well as run web application together, thus allowing them to experience a much richer communication than just plain voice. She calls to the health center by starting the e-health app and gets connected to a nurse, which answers the call using her smart phone device. Alice takes a photo of the rash using her mobile phone. Note that the photo of the rash is on the patient’s phone and is therefore “outside the electronic medical record of the patient”).
Ekeroth does not expressly disclose prior to using a health related software platform for interfacing with a physician, receiving, with a first portable personal computing device of the patient, a plurality of health data elements relating to the patient including health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time exceeding a few days, the one or more sensor devices being communicatively coupled with the first portable personal computing device, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician, and wherein the one or more sensor devices are included in the first portable personal computing device and/or included within one or more wearable devices of the patient; transmitting, by the first portable personal computing device, the plurality of health data elements to a server associated with the first portable personal computing device; prior to the live communication session, identifying, by the first portable personal computing device based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release; receiving, by the server, a request from the physician computing device, to retrieve relevant health data that includes the first subset of the plurality of health data elements in preparation for or during the live communication session, the first subset of data being associated with the treatment and/or diagnosis of the patient by the physician; and outputting from the server to the physician the first subset data that excludes a second subset.
Schibuk discloses prior to using a health related software platform for interfacing with a physician, receiving, with a first portable personal computing device of the patient, a plurality of health data elements relating to the patient including health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time, the one or more sensor devices being communicatively coupled with the first portable personal computing device, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician (Fig. 1, see para. 337-339 and 342 of Schibuk; The exemplary meter has a lancet for pricking the skin and drawing blood, a sensor for detecting the amount of glucose in a blood sample, and a digital video and audio display for reading out the detected glucose level and other information useful to a patient. An individual, such as patient 3310, possesses the exemplary glucometer 3320 and a smartphone 3330, as indicated by the broken lines. The glucometer communicates with the smartphone using Bluetooth, or other communications technology. In this embodiment, the patient receives glucometer 3320 from his doctor 3360 at a visit in which the doctor programs the glucometer with encryption information, as described more fully below. Patient 3310 proceeds to use glucometer 3320 according to its intended purpose; however, in embodiments according to this invention, the glucometer automatically transmits its glucose reading to smartphone 3330. Upon receiving the data, smartphone 3330 attempts to save the data to a medical database in trusted storage 3350. In particular, smartphone 3330 will determine which communications network 3340, if any, may be used to upload the data. The method begins with process 3410, in which a user acquires data using a data gathering device. In an exemplary embodiment, a glucometer senses a concentration of glucose in a patient blood sample. In process 3420 the gathered data are encrypted in the device, using a public encryption key of the phone's user. Once stored in the database, the data are now available for retrieval by appropriate, authorized individuals, such as doctors, police officers, co-workers, or others. An individual may be authorized to view that data based on several criteria which are discussed above. For example, data regarding a patient's blood glucose may be released to the patient's doctor, but also to an emergency medical technician (EMT) at the scene of an emergency if the EMT requests the data using proper, verifiable medical credentials in a mobile electronic device.).
Ibikunle discloses transmitting, by the first portable personal computing device, the plurality of health data elements to a server associated with the first portable personal computing device (see Fig. 5, para. 68-70 of Ibikunle; The profile information 420 may identify contact information associated with a patient device 505, such that server 100 sends a message to patient device 505 upon an unsuccessful attempt to access the patient's personal health information. Examples of such a notification may include a text message, email message, phone call, or the like and be in accordance with information stored within the patient's profile information 420.); prior to the live communication session, identifying, by the first portable personal computing device based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release (para. 76 of Ibikunle; the limited level of access may be defined by the profile information 420 as access to a subset of personal health information 415 where the subset is selectively pre-designated by the patient. ); receiving, by the server, a request from the physician computing device, to retrieve relevant health data that includes the first subset of the plurality of health data elements in preparation for or during the live communication session, the first subset of data being associated with the treatment and/or diagnosis of the patient by the physician and outputting from the server to the physician the first subset data that excludes a second subset (para. 12, 66, 76, and 83 of Ibikunle; authenticated access by a user of a remote access device to personal health information designated by a patient and maintained on a server computing device is disclosed. The method begins by transmitting a request from the remote access device to the server computing device, where the request is associated with accessing at least a portion of the personal health information. If the user of the remote access device is not pre-authorized to access the personal health information, the method then provides credential information by the user of the remote access device to the server computing device. The provided credential information may be automatically gathered from the remote access device, input by the user, or a combination of such. At the server 100, PHI management application 225 may process the location information as part of authenticating a limited level of access that allows the ER physician to have quick access to a subset of the patient's personal health information. For example, application 225 may determine if the location information indicates the remote access device is located substantially near or within a healthcare facility on a map. If so, an embodiment may authenticate that the user is a healthcare provider and quickly provide access to the requested patient personal health information.).
Conrad discloses wherein the one or more sensor devices are included in the first portable personal computing device and/or included within one or more wearable devices of the patient (para. 41, 49, and 80 of Conrad; The wearable device can also include one or more data collection systems that do not make use of functionalized particles. For example, the wearable device can include sensors for measuring blood pressure, pulse rate, skin temperature, or other parameters. In another example, a wearable device may be configured to measure blood glucose.) and health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time exceeding a few days (para. 53 of Conrad; The wearable device may obtain data in each of a plurality of measurement periods. The length of the measurement period may be set on the device itself or may be set remotely, for example, by instruction from a remote server. The device may be configured with many measurement periods each day--for example, continuous, every second, every minute, every hour, every 6 hours, etc.--or may be configured to take measurements once a week or once a month. The measurement periods can extend through a plurality of consecutive days (such as 30 or more days), and each of the consecutive days can include multiple measurement periods. In one example, the wearable device could measure the physiological parameters every hour, so that each of the consecutive days includes twenty-four measurement periods.).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk, Ibikunle, and Conrad within Ekeroth. The motivation for doing so would have been so that the patient controls the transmission of all gathered data (para. 339 & 346 of Schibuk), for an improved authentication and access system for personal health information (para. 1 of Ibikunle), and to non-invasively automatically detect and measure a plurality of physiological parameters of a person wearing the device and detect changes over time (para. 41 & 12 of Conrad).
(B) Referring to claim 3, Ekeroth discloses the method further comprising: receiving an input, with the first portable personal computing device, as to a condition for which treatment and/or diagnosis is desired (page 21, line 19 — page 22, line 17 of Ekeroth).
(C) Referring to claim 4, Ekeroth discloses further comprising: authorizing release of the identified first subset of data to the physician based on a second user input received via the first portable personal computing device (page 21, line 19 — page 22, line 17 of Ekeroth).
(D) Referring to claim 5, Ekeroth discloses wherein the second user input is different from the first user input (page 21, line 19 — page 22, line 17 of Ekeroth).
(E) Referring to claim 6, Ekeroth discloses wherein the plurality of health data elements includes any of: input or downloaded data, sensor data and laboratory values (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(F) Referring to claim 7, Ekeroth does not disclose wherein receiving the plurality of health data elements comprises receiving sensor data from the one or more sensors communicatively coupled with the first portable personal computing device, the sensor data relating to any of: activity level, activity tracking, respiration, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof.
Schibuk discloses wherein receiving the plurality of health data elements comprises receiving sensor data from the one or more sensors communicatively coupled with the first portable personal computing device, the sensor data relating to any of: activity level, activity tracking, respiration, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof (para. 339 and 342 of Schibuk).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk and within Ekeroth. The motivation for doing so would have been for reading out the detected glucose level and other information useful to a patient (para. 338 of Schibuk).
(G) Referring to claim 8, Ekeroth, Schibuk, and Ibikunle do not expressly disclose wherein the one or more sensors are included in the one or more wearable devices that are wearable by the patient, each of the one or more wearable devices including a sensor that measures a health metric of the patient when worn by the patient.
Conrad discloses wherein the one or more sensors are included in the one or more wearable devices that are wearable by the patient, each of the one or more wearable devices including a sensor that measures a health metric of the patient when worn by the patient (para. 41 and 49 of Conrad).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Conrad within Ekeroth, Schibuk, and Ibikunle. The motivation for doing so would have been to non-invasively automatically detect and measure a plurality of physiological parameters of a person wearing the device (para. 41 of Conrad).
(H) Referring to claim 33, Ekeroth, Schibuk, and Ibikunle do not expressly disclose wherein the one or more sensors include the one or more wearable devices that are wearable by the patient, each including a sensor that measures a health metric of the patient when worn by the patient.
Conrad discloses wherein the one or more sensors include the one or more wearable devices that are wearable by the patient, each including a sensor that measures a health metric of the patient when worn by the patient (para. 41 and 49 of Conrad).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Conrad within Ekeroth, Schibuk, and Ibikunle. The motivation for doing so would have been to non-invasively automatically detect and measure a plurality of physiological parameters of a person wearing the device (para. 41 of Conrad).
(I) Referring to claims 9 and 34, Ekeroth, Schibuk, and Ibikunle do not expressly disclose wherein the health metric corresponds to any of an activity level, activity tracking, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof.
Conrad discloses wherein the health metric corresponds to any of an activity level, activity tracking, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof (para. 80 and 87 of Conrad).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Conrad within Ekeroth, Schibuk, and Ibikunle. The motivation for doing so would have been to non-invasively automatically detect and measure a plurality of physiological parameters of a person wearing the device (para. 41 of Conrad).
(J) Referring to claims 10 and 35, Ekeroth, Schibuk, and Ibikunle do not expressly disclose wherein the health metric corresponds to blood glucose that is monitored by a wearable device such that the plurality of health data elements include blood glucose measurements obtained multiple times each day over the duration of time, the duration of time being one week or more, so as to facilitate treatment of diabetes.
Conrad discloses wherein the health metric corresponds to blood glucose that is monitored by a wearable device such that the plurality of health data elements include blood glucose measurements obtained multiple times each day over the duration of time, the duration of time being one week or more, so as to facilitate treatment of diabetes (para. 53, 80, and 114 of Conrad).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Conrad within Ekeroth, Schibuk, and Ibikunle. The motivation for doing so would have to determine if the drug is not effective for the wearer (para. 80 of Conrad).
(K) Referring to claim 11, Ekeroth discloses wherein initiating communication with the physician comprises establishing communication with a second computing device associated with the physician, wherein communication is established remotely through a server and/or through near field communication (page 21, line 19 — page 22, line 21 of Ekeroth).
(L) Referring to claim 16, Ekeroth discloses wherein the first subset of data includes any of: the patient's vital signs, one or more physiological measurements of the patient, a medication of the patient, a factor associated with a condition to be treated or diagnosed, or any combination thereof (see page 1, lines 14-21, page 4, lines 6-16, and page 21, line 19 — page 22, line 4 of Ekeroth).
(M) Referring to claim 17, Ekeroth discloses further comprising: receiving an instruction to the patient, with the first portable personal computing device via the health related software platform during the live communication session, from the physician regarding the diagnosis and/or treatment (page 21, line 19 — page 22, line 17 of Ekeroth).
(N) Referring to claim 18, Ekeroth discloses wherein the health related software platform of the first portable personal computing device has full access to all of the plurality of health elements collected, whereas the physician computing device has access to the first subset of data but not the excluded second subset of data (page 1, lines 14-21 and page 21, line 19 — page 22, line 4 of Ekeroth).
(O) Referring to claim 19, Ekeroth discloses A system for facilitating a treatment and/or diagnosis of a patient by a live communication session, the system comprising (page 21, line 19 — page 22, line 17 of Ekeroth):
a first portable personal computing device of the patient that is operable by the patient or an associated caretaker (page 21, line 19 — page 22, line 17 of Ekeroth; note the patient using the e-health app on their mobile phone);
a processor of the first portable personal computing device, the health related software platform having computer executable instructions configured to: initiate the live communication session with a physician computing device of the physician, through the health related software platform, using the communication module wherein the physician computing device comprises a corresponding health related software platform through which the live communication session is conducted (page 21, line 19 — page 22, line 17 of Ekeroth; Alice is feeling is worried about a skin rash on her youngest child. Instead of using regular telephony, she uses a health care app on her mobile used device. The e-health app is bundled with a collaborative workspace that patients and doctors can use to share media and data as well as run web application together, thus allowing them to experience a much richer communication than just plain voice. She calls to the health center by starting the e-health app and gets connected to a nurse, which answers the call using her smart phone device. Alice takes a photo of the rash using her mobile phone. By using a drag-and-drop interface she drags the picture into the collaborative workspace thus transforming the picture into a collaborative web widget.);
output from the server to the physician during the live communication session, the first subset so as to facilitate the treatment and/or the diagnosis of the patient by the physician, wherein the plurality of health data elements communicated, including the first subset, are outside of the electronic medical record of the patient (see page 1, lines 14-21 and page 21, line 19 — page 22, line 17 of Ekeroth; note that Alice is feeling worried about a skin rash on her youngest child. Instead of using regular telephony, she uses a health care app on her mobile used device. The e-health app is bundled with a collaborative workspace that patients and doctors can use to share media and data as well as run web application together, thus allowing them to experience a much richer communication than just plain voice. She calls to the health center by starting the e-health app and gets connected to a nurse, which answers the call using her smart phone device. Alice takes a photo of the rash using her mobile phone. Note that the photo of the rash is on the patient’s phone and is therefore “outside the electronic medical record of the patient”).
Ekeroth does not expressly disclose the first portable personal computing device including a wireless communication module for transmitting to and receiving data from a physician; a server associated with the first portable personal computing device, the server having a health information database accessible by the first portable personal computing device, wherein the health information database includes a plurality of health data elements of personal health information of the patient and including health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time exceeding a few days, by the first portable personal computing device communicatively coupled to the one or more sensor devices, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician, and wherein the one or more sensor devices are included in the first portable personal computing device and/or included within one or more wearable devices of the patient, and wherein the first portable personal computing device is configured to transmit the plurality of health data elements to the server; the processor having a computer readable medium having stored thereon a health related software platform facilitating communication between the patient and the physician in a live communication session; prior to the live communication session, identify, based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is authorized by the patient for release to the physician from the server, the first subset excluding a second subset of the plurality of health data elements that is withheld from release; a processor operably coupled with the server, the processor having a computer readable medium having stored thereon computer executable instructions configured to: receive, by the server, a request from the physician computing device, to retrieve the first subset of the plurality of health data elements in preparation for or during the live communication session, wherein the first subset is associated with the treatment and/or diagnosis by the physician; and output from the server to the physician, in response to a second input, the first subset of the plurality of health data elements that excludes a second subset of the plurality of health data elements.
Schibuk discloses a server associated with the first portable personal computing device, the server having a health information database accessible by the first portable personal computing device, wherein the health information database includes a plurality of health data elements of personal health information of the patient and including health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time by the first portable personal computing device communicatively coupled to the one or more sensor devices, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician (Fig. 1, and para. 337-339, 342, & 348 of Schibuk; The exemplary meter has a lancet for pricking the skin and drawing blood, a sensor for detecting the amount of glucose in a blood sample, and a digital video and audio display for reading out the detected glucose level and other information useful to a patient. An individual, such as patient 3310, possesses the exemplary glucometer 3320 and a smartphone 3330, as indicated by the broken lines. The glucometer communicates with the smartphone using Bluetooth, or other communications technology. In this embodiment, the patient receives glucometer 3320 from his doctor 3360 at a visit in which the doctor programs the glucometer with encryption information, as described more fully below. Patient 3310 proceeds to use glucometer 3320 according to its intended purpose; however, in embodiments according to this invention, the glucometer automatically transmits its glucose reading to smartphone 3330. Upon receiving the data, smartphone 3330 attempts to save the data to a medical database in trusted storage 3350. In particular, smartphone 3330 will determine which communications network 3340, if any, may be used to upload the data. The method begins with process 3410, in which a user acquires data using a data gathering device. In an exemplary embodiment, a glucometer senses a concentration of glucose in a patient blood sample. In process 3420 the gathered data are encrypted in the device, using a public encryption key of the phone's user. Once stored in the database, the data are now available for retrieval by appropriate, authorized individuals, such as doctors, police officers, co-workers, or others. An individual may be authorized to view that data based on several criteria which are discussed above. For example, data regarding a patient's blood glucose may be released to the patient's doctor, but also to an emergency medical technician (EMT) at the scene of an emergency if the EMT requests the data using proper, verifiable medical credentials in a mobile electronic device.)
Ibikunle discloses the first portable personal computing device including a wireless communication module for transmitting to and receiving data from a physician and the processor having a computer readable medium having stored thereon a health related software platform facilitating communication between the patient and the physician in a live communication session (para. 26, 34, and 42 of Ibikunle; Examples of such a device may be a computer, radio, or other processor-based component or appliance of a larger system that requires or desires components to communicate over communication paths, such as wired or wireless networks. Further examples of devices include, but are not limited to, telephones, cell phones, smart phones, computers, laptops, other handheld devices (such as a PDA or tablet), or any other processor-based appliances that request access to personal health information maintained by another device (e.g., a server type of device). During relevant operation of device 110a shown in FIG. 3, browser application 230 may operate as a software application that allows the user to easily communicate with the PHI information management application 225 in order to create/update the personal health information and profile information maintained on server 100. Additionally, the dedicated personal health information access app used on remote access device 110a may provide the user of the device with quick access to the personal health information in an advantageously timely manner for those registered or pre-authorized to have access to the personalized health information and for those who are determined to be actual health care providers that attempt to access the information in emergency situations without being pre-authorized or registered users.); wherein the first portable personal computing device is configured to transmit the plurality of health data elements to the server (see Fig. 5, para. 68-70 of Ibikunle; The profile information 420 may identify contact information associated with a patient device 505, such that server 100 sends a message to patient device 505 upon an unsuccessful attempt to access the patient's personal health information. Examples of such a notification may include a text message, email message, phone call, or the like and be in accordance with information stored within the patient's profile information 420. ); prior to the live communication session, identify, based on a first user input received with the first portable personal computing device, a first subset of the plurality of health data elements that is authorized by the patient for release to the physician from the server, the first subset excluding a second subset of the plurality of health data elements that is withheld from release (para. 76 of Ibikunle; the limited level of access may be defined by the profile information 420 as access to a subset of personal health information 415 where the subset is selectively pre-designated by the patient.); a processor operably coupled with the server, the processor having a computer readable medium having stored thereon computer executable instructions configured to: receive, by the server, a request from the physician computing device, to retrieve the first subset of the plurality of health data elements in preparation for or during the live communication session, wherein the first subset is associated with the treatment and/or diagnosis by the physician and output from the server to the physician, in response to a second input, the first subset of the plurality of health data elements that excludes a second subset of the plurality of health data elements (para. 12, 66, 76, and 83 of Ibikunle; authenticated access by a user of a remote access device to personal health information designated by a patient and maintained on a server computing device is disclosed. The method begins by transmitting a request from the remote access device to the server computing device, where the request is associated with accessing at least a portion of the personal health information. If the user of the remote access device is not pre-authorized to access the personal health information, the method then provides credential information by the user of the remote access device to the server computing device. The provided credential information may be automatically gathered from the remote access device, input by the user, or a combination of such. At the server 100, PHI management application 225 may process the location information as part of authenticating a limited level of access that allows the ER physician to have quick access to a subset of the patient's personal health information. For example, application 225 may determine if the location information indicates the remote access device is located substantially near or within a healthcare facility on a map. If so, an embodiment may authenticate that the user is a healthcare provider and quickly provide access to the requested patient personal health information.).
Conrad discloses wherein the one or more sensor devices are included in the first portable personal computing device and/or included within one or more wearable devices of the patient (para. 41, 49, and 80 of Conrad; The wearable device can also include one or more data collection systems that do not make use of functionalized particles. For example, the wearable device can include sensors for measuring blood pressure, pulse rate, skin temperature, or other parameters. In another example, a wearable device may be configured to measure blood glucose.); and health data elements automatically collected from one or more sensors of one or more sensor devices over a duration of time exceeding a few days (para. 53 of Conrad; The wearable device may obtain data in each of a plurality of measurement periods. The length of the measurement period may be set on the device itself or may be set remotely, for example, by instruction from a remote server. The device may be configured with many measurement periods each day--for example, continuous, every second, every minute, every hour, every 6 hours, etc.--or may be configured to take measurements once a week or once a month. The measurement periods can extend through a plurality of consecutive days (such as 30 or more days), and each of the consecutive days can include multiple measurement periods. In one example, the wearable device could measure the physiological parameters every hour, so that each of the consecutive days includes twenty-four measurement periods.)
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk, Ibikunle, and Conrad within Ekeroth. The motivation for doing so would have been so that the patient controls the transmission of all gathered data (para. 339 & 346 of Schibuk), for an improved authentication and access system for personal health information (para. 1 of Ibikunle), and to non-invasively automatically detect and measure a plurality of physiological parameters of a person wearing the device and detect changes over time (para. 41 & 12 of Conrad).
(P) Referring to claim 20, Ekeroth discloses wherein the instructions are further configured for: authorizing release of the identified first subset of data to the physician based on a second user input received via the first portable personal computing device (page 21, line 19 — page 22, line 21 of Ekeroth).
(Q) Referring to claim 21, Ekeroth discloses wherein the second user input is different from the first user input (page 21, line 19 — page 22, line 17 of Ekeroth).
(R) Referring to claim 22, Ekeroth discloses wherein the first portable device includes a user input, and the processor is further configured to initiate communication with the physician in response to receiving a command input by the patient and/or a caretaker of the patient with the user input (page 21, line 19 — page 22, line 17 of Ekeroth).
(S) Referring to claim 23, Ekeroth discloses wherein the first portable personal computing device includes a graphical user interface and the processor is further configured to allow selection, with a user input, of the plurality of health data elements corresponding to the patient for whom communication with the physician is desired (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(T) Referring to claim 26, Ekeroth discloses further comprising: a graphical user interface of the first portable personal computing device, wherein the processor of the first portable personal computing device is configured to display, at least a portion of, the first set of data requested in the health information query and to allow selection of the first subset of the first set of data with the user input of the first portable personal computing device (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(U) Referring to claim 27, Ekeroth discloses wherein the plurality of health data elements includes any of: an input or downloaded data, sensor data and laboratory values (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(V) Referring to claim 28, Ekeroth discloses wherein input or downloaded data comprises data input by the patient (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(W) Referring to claim 29, Ekeroth does not expressly disclose wherein the one or more sensors are adapted to obtain sensor data and are communicatively coupled with the first portable personal computing device such that the plurality of health data elements include sensor data from the one or more sensors.
Schibuk discloses wherein the one or more sensors are adapted to obtain sensor data and are communicatively coupled with the first portable personal computing device such that the plurality of health data elements include sensor data from the one or more sensors (para. 339 and 342 of Schibuk).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk and within Ekeroth. The motivation for doing so would have been for reading out the detected glucose level and other information useful to a patient (para. 338 of Schibuk).
(X) Referring to claim 30, Ekeroth does not expressly disclose wherein the one or more sensors are configured to obtain sensor data relating to any of: activity level, activity tracking, respiration, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof.
Schibuk discloses wherein the one or more sensors are configured to obtain sensor data relating to any of: activity level, activity tracking, respiration, body temperature, heart wellness data, hydration levels, perspiration, blood glucose, salinity, sleep cycles, posture, 02 levels, muscle engagement, or any combination thereof (para. 339 and 342 of Schibuk).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk and within Ekeroth. The motivation for doing so would have been for reading out the detected glucose level and other information useful to a patient (para. 338 of Schibuk).
(Y) Referring to claim 31, Ekeroth does not expressly disclose wherein the one or more sensors are configured to obtain sensor data over the duration of time and the processor is configured such that the sensor data is obtained automatically over the duration of time.
Schibuk discloses wherein the one or more sensors are configured to obtain sensor data over the duration of time and the processor is configured such that the sensor data is obtained automatically over the duration of time (para. 338, 339, and 342 of Schibuk).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk and within Ekeroth. The motivation for doing so would have been for reading out the detected glucose level and other information useful to a patient (para. 338 of Schibuk).
(Z) Referring to claim 32, Ekeroth discloses wherein at least some of the one or more sensors are incorporated into the first portable personal computing device (page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(W) Referring to claim 36, Ekeroth does not expressly disclose wherein the one or more sensors and the processor are configured such that the sensor data is automatically communicated to the first portable device for inclusion in the plurality of health data elements stored within the health information database.
Schibuk discloses wherein the one or more sensors and the processor are configured such that the sensor data is automatically communicated to the first portable device for inclusion in the plurality of health data elements stored within the health information database (para. 339 of Schibuk).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Schibuk and within Ekeroth. The motivation for doing so would have been to publish the data to trusted storage for later retrieval by a trusted individual (para. 338 of Schibuk).
(AA) Referring to claim 37, Ekeroth discloses wherein at least some of the plurality of health data elements are not specific to a health condition being treated and/or diagnosed by the system (Fig. 1, page 21, line 19 — page 22, line 17 and page 1, lines 14-21 of Ekeroth).
(BB) Referring to claim 38, Ekeroth discloses wherein the processor of the first portable personal computing device is further configured to: receive an instruction to the patient, with the first portable personal computing device via the health related software platform during the live communication session, from the physician regarding the diagnosis and/or treatment (page 21, line 19 — page 22, line 17 of Ekeroth).
(CC) Referring to claim 39, Ekeroth discloses wherein the health related software platform of the first portable personal computing device has full access to all the plurality of health elements collected, and wherein the physician computing device is separately coupled with the electronic medical record of the patient (page 1, lines 14-21, page 4, lines 2-16, and page 21, line 19 — page 22, line 4 of Ekeroth).
Claim(s) 2, 24, and 25 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ekeroth (WO 2012/173541 A1), in view of Schibuk (US 2009/0132813 A1), in view of Ibikunle et al. (US 2015/0019254 A1), in view of Conrad et al. (US 2014/0378777 A1), and further in view of Hamm et al. (US 2013/0060576 A1).
(A) Referring to claim 2, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose the method further comprising: receiving a selection of the physician from a plurality of physicians displayed on a graphical user interface of the first portable device via the health related software platform.
Hamm discloses receiving a selection of the physician from a plurality of physicians displayed on a graphical user interface of the first portable device via the health related software platform (para. 53 & 164 of Hamm).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned feature of Hamm within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to match a patient with a doctor and schedule an appointment (para. 164 of Hamm).
(B) Referring to claim 24, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the first portable personal computing device includes a graphical user interface and the processor is further configured to allow selection of the physician from a plurality of physicians displayed on the graphical user interface with the user input.
Hamm discloses wherein the first portable personal computing device includes a graphical user interface and the processor is further configured to allow selection of the physician from a plurality of physicians displayed on the graphical user interface with the user input (para. 164 & 165 of Hamm).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned feature of Hamm within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to begin a telemedicine consultation (para. 165 of Hamm).
(C) Referring to claim 25, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the processor is further configured to display a plurality of physicians on a graphical user interface of the first portable device based on a condition desired to be treated and/or diagnosed received from the user input.
Hamm discloses wherein the processor is further configured to display a plurality of physicians on a graphical user interface of the first portable device based on a condition desired to be treated and/or diagnosed received from the user input (para. 164 of Hamm).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned feature of Hamm within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to filter results based on criteria (para. 164 of Hamm).
Claim(s) 12-15 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ekeroth (WO 2012/173541 A1), in view of Schibuk (US 2009/0132813 A1), in view of Ibikunle et al. (US 2015/0019254 A1), in view of Conrad et al. (US 2014/0378777 A1), and further in view of Mayaud (US 2002/0042726 A1).
(A) Referring to claim 12, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the first subset of data is determined based on receiving of a categorical selection input by the physician with the second computing device, the categorical selection being selected from categories of: a specialty or sub-specialty, a medication or class of medication, and a condition or class of conditions for which the patient is being diagnosed and/or treated.
Mayaud discloses wherein the first subset of data is determined based on receiving of a categorical selection input by the physician with the second computing device, the categorical selection being selected from categories of: a specialty or sub-specialty, a medication or class of medication, and a condition or class of conditions for which the patient is being diagnosed and/or treated (Fig. 3 and para. 147, 199, and 234 of Mayaud)
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned feature of Mayaud within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to provide a physician user with substantially all available relevant prescribing information on drugs (para. 199 of Mayaud).
(B) Referring to claim 13, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the categories comprise the condition being diagnosed and/or treated, the condition including any of: a symptom, an injury, a disability, a disorder, a syndrome, an infection, dysfunction, pain or a disease.
Mayaud discloses wherein the categories comprise the condition being diagnosed and/or treated, the condition including any of: a symptom, an injury, a disability, a disorder, a syndrome, an infection, dysfunction, pain or a disease (Fig. 3 and para. 234 of Mayaud)
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned feature of Mayaud within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to enable a prescriber to approach selection of a treatment drug by first specifying a diagnosed condition (para. 234 of Mayaud).
(C) Referring to claim 14, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the categories comprise a class or type of medication grouped according to any of: chemical structure, mechanism of action, and purpose.
Mayaud discloses wherein the categories comprise a class or type of medication grouped according to any of: chemical structure, mechanism of action, and purpose (Fig. 6 and para. 252-254 of Mayaud).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Mayaud within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to assist the physician in prescribing effective drugs (para. 252 of Mayaud).
(D) Referring to claim 15, Ekeroth, Schibuk, Ibikunle, and Conrad do not disclose wherein the first subset of data being requested is determined with the second computing device, at least in part, on one or more attributes of the patient, the attribute comprising one or more of: a risk factor associated with a condition being diagnosed and/or treated, a drug allergy, age, weight, gender, race, geographical location, ethnic background, a previously diagnosed condition, and a disease state.
Mayaud discloses wherein the first subset of data being requested is determined with the second computing device, at least in part, on one or more attributes of the patient, the attribute comprising one or more of: a risk factor associated with a condition being diagnosed and/or treated, a drug allergy, age, weight, gender, race, geographical location, ethnic background, a previously diagnosed condition, and a disease state (para. 132-135, 148, 149, 189, and Fig. 2 of Mayaud).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Mayaud within Ekeroth, Schibuk, Ibikunle, and Conrad. The motivation for doing so would have been to make appropriate drug selections (para. 189 of Mayaud).
Claim(s) 40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ekeroth (WO 2012/173541 A1), in view of Schibuk (US 2009/0132813 A1), in view of Ibikunle et al. (US 2015/0019254 A1), in view of Conrad et al. (US 2014/0378777 A1), and further in view of Guday et al. (US 7,292,956 B1).
(A) Referring to claim 40, Ekeroth, Schibuk, Ibikunle and Conrad do not expressly disclose wherein the first subset output to the physician computing device includes processed data representing a trend over time or an average derived from the plurality of the health data elements automatically collected over the duration of time.
Guday discloses wherein the first subset output to the physician computing device includes processed data representing a trend over time or an average derived from the plurality of the health data elements automatically collected over the duration of time (col. 4, lines 29-44 and col. 15, line 63 – col. 16, line 35 of Guday).
Before the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to combine the aforementioned features of Guday within Ekeroth, Schibuk, Ibikunle and Conrad. The motivation for doing so would have been so that the health care provider may be alerted to a potentially abnormal value in the patient data while maintaining privacy issues of the patient (col. 16, lines 5-19 of Guday).
Response to Arguments
Applicant’s arguments with respect to claim(s) 1 and 19 have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant's additional arguments filed 6/2/26 have been fully considered but they are not persuasive. Applicant’s arguments will be addressed hereinbelow in the order in which they appear in the response filed 6/2/26.
(1) Applicant requests withdrawal of the 101 rejection.
(2) Applicant requests the 103 rejections be withdrawn.
(A) As per the first argument, see 101 rejection above. The Examiner submits that the foregoing underlined limitations in the 101 rejection above constitute “certain methods of organizing human activity” because prior to interfacing with a physician, receiving a plurality of health data elements relating to the patient including health data elements, wherein the plurality of health data elements are outside of any electronic medical record of the patient accessible by the physician; prior to the live communication session, identifying a first subset of the plurality of health data elements that is pre-authorized by the patient for release to the physician, the first subset excluding a second subset of the plurality of health data elements that is withheld from release; initiating the live communication session with the physician; receiving a request from the physician to retrieve relevant health data that includes the first subset of the plurality of health data elements in preparation for or during the live communication session, the first subset of data being associated with the treatment and/or diagnosis of the patient by the physician; and outputting to the physician during the live communication session, the first subset data that excludes a second subset so as to facilitate treatment and/or the diagnosis of the patient, wherein the plurality of health data elements, including the first subset output to the physician, are outside the electronic medical record of the patient amount to managing personal behavior or relationships or interactions between people (including social activities, teaching, and following rules or instructions), at the currently claimed high level of generality. Accordingly, the claim recites at least one abstract idea. This judicial exception is not integrated into a practical application. In particular, the software platform, first portable personal computing device, server, one or more sensors of one or more sensor devices, one or more wearable devices, computing device, wireless communication module, database, processor, and computer readable medium are recited at a high-level of generality (i.e., as generic computer components performing generic computer functions of receiving data, transmitting data, identifying data, collecting data, receiving inputs, and outputting data) such that it amounts no more than mere instructions to apply the exception using generic computer components. The claims recite the additional limitation of data elements automatically collected from one or more sensors of one or more sensor devices. Such steps would be routinely used by those of ordinary skill in the art and are well-understood, routine and conventional activities specified at a high level of generality. It is mere data gathering in conjunction with the abstract idea and therefore adds insignificant extrasolution activity to the judicial exception. Accordingly, these additional elements do not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. Regarding the additional limitations directed to live communication with a physician computing device and a portable computing device, a server receiving a request, the portable computing device transmitting data to the server, and the server outputting data all of which the Examiner submits merely add insignificant extra-solution activity to the abstract idea or are claimed in a merely generic manner (e.g., at a high level of generality), the Examiner further submits that such steps are not unconventional as they merely consist of receiving and transmitting data over a network. See MPEP 2106.05(d)(II).
The claims here are unlike the claims in Enfish. In Enfish, the claims at issue focused not on asserted advances in uses to which existing computer capabilities could be put, but on a specific improvement—a particular database technique—in how computers could carry out one of their basic functions of storage and retrieval of data. The present case is different: the focus of the claims is not on such an improvement in computers as tools, but on certain independently abstract ideas that use computers as tools. Furthermore, Applicant’s arguments regarding Examples 42 and 40 are not persuasive the eligible claims in those cases are not analogous to Applicant’s claims.
(B) In response to the arguments regarding prior art, the test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981). In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). In response to applicant’s argument that there is no teaching, suggestion, or motivation to combine the references, the examiner recognizes that obviousness may be established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so found either in the references themselves or in the knowledge generally available to one of ordinary skill in the art. See In re Fine, 837 F.2d 1071, 5 USPQ2d 1596 (Fed. Cir. 1988), In re Jones, 958 F.2d 347, 21 USPQ2d 1941 (Fed. Cir. 1992), and KSR International Co. v. Teleflex, Inc., 550 U.S. 398, 82 USPQ2d 1385 (2007). In this case, the motivations to combine came directly from the references. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). See modified 103 rejections above with newly added Ibikunle reference.
Conclusion
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/LENA NAJARIAN/Primary Examiner, Art Unit 3687
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