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 .
DETAILED ACTION
Response to Amendment
In the amendment dated 14 August 2025, the following occurred: Claims 1, 5, 9, 11, 15, 19, and 23 have been amended; Claims 2, 12, and 20 have been cancelled.
Claims 1, 3-11, 13-19, and 21-26 are pending.
Priority
This application claims priority to U.S. Provisional Patent Application No. 63/425,463 dated 15 November 2022.
Subject Matter Free of Prior Art
The cited prior art of record fails to expressly teach or suggest, either alone or in combination, the features found within the independent claim. In particular, the cited prior art of record fails to expressly teach or suggest the combination of: computing a probability score indicative of availability of each of a plurality of time slots of an operating room, wherein the availability of one or more time slots is predicted by applying a trained artificial intelligence model on real-time operating room scheduling data associated with the hospital , wherein each of the time slots corresponds to a virtual operating room that represents a plurality of physical operating rooms; and in response to a request for scheduling a medical procedure on a patient, allocating one of the predicted time slots from the virtual operating room for performing the medical procedure in the hospital when the computed probability score is greater than or equal to a pre-determined threshold probability score; and thereafter scheduling the medical procedure.
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, 3-11, 13-19, and 21-26 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, 11, and 19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more.
Step 1
The claims recite a method, system, and computer-readable storage medium (“CRM”) for scheduling a medical procedure associated with a patient in an operating room associated with a hospital.
Step 2A1
The limitations of (Claim 1 being representative) predicting availability of one or more time slots for performing medical procedures in a hospital for a pre-determined time period by generating a virtual operating room corresponding to a plurality of physical operating rooms associated with the hospital and computing a probability score indicative of availability of each of the time slots, wherein the availability of one or more time slots is predicted by applying a trained artificial intelligence model on real-time operating room scheduling data associated with the hospital, wherein each of the time slots correspond to the virtual operating room: in response to a request for scheduling a medical procedure on a patient, allocating one of the predicted time slots from the virtual operating room for performing the medical procedure in the hospital when the computed probability score is greater that or equal to a pre-determined threshold probability score; and scheduling the medical procedure in one of a plurality of operating rooms associated with the hospital based on the allocated time slot when the operating room becomes available for performing the medical procedure, as drafted, is a process that, under the broadest reasonable interpretation, covers certain methods of organizing human activity (i.e., managing personal behavior including following rules or instructions) but for recitation of generic computer components. That is, other than reciting a system or CRM implemented by a processor (i.e., a computer), the claimed invention amounts to managing personal behavior or interaction between people. The Examiner notes that the method of Claim 1 is not tied to any particular technological environment and is thus purely directed to an abstract idea. For example, but for the data processor and memory (CRM), this claim encompasses a person scheduling an operating room time slot for one or more procedures in the manner described in the identified abstract idea, supra. The Examiner notes that the background section of Applicant’s Specification indicates that scheduling an OR for a procedure is a human task (see Spec. Para. 0003, 0004). If a claim limitation, under its broadest reasonable interpretation, covers managing personal behavior or interactions between people 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 claim recites an abstract idea.
The Examiner notes that the Applicant has self-defined the trained artificial intelligence model as a linear regression model (see Spe. Para. 0027), which is a type of model that can be performed by a human and is thus considered to be part of the abstract idea.
Step 2A2
This judicial exception is not integrated into a practical application. In particular, Claims 11 and 19 recite the additional elements of a memory/CRM and processor that implements the identified abstract idea. Claim 1 is not tied to any technological environment. The memory/CRM and processor are not described by the applicant and is recited at a high-level of generality (i.e., a computer memory and processor) such that it amounts no more than mere instructions to apply the exception using generic computer components. Accordingly, this additional element does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea.
Step 2B
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 of using a memory/CRM and processor to perform the noted steps amounts to no more than mere instructions to apply the exception using a generic computer component. Mere instructions to apply an exception using a generic computer component cannot provide an inventive concept (“significantly more”).
Claims 3-10, 13-18, and 21-26 are similarly rejected because they either further define/narrow the abstract idea and/or do not further limit the claim to a practical application or provide as inventive concept such that the claims are subject matter eligible even when considered individually or as an ordered combination. Claim(s) 3, 13, 21 merely describe(s) displaying virtual operating room time slots. Claim(s) 4, 14, 22 merely describe(s) allocating time slots. Claim(s) 5, 15, 23 merely describe(s) computing the probability score and determining one or more slots using the probability. Claim(s) 6, 16, 24 merely describe(s) predicting time slots by taking into account EMR data. Claim(s) 7, 17, 25 merely describe(s) scheduling based on open operating room data. Claim(s) 8, 18, 26 merely describe(s) determining if a received time slot is open and selecting an opening based on the determination. Claim(s) 9 merely describe(s) training the AI model to predict availability of one or more time slots using a data set, validating the AI model using a second data set, and testing the validated model using a third data set. Claim(s) 10 merely describe(s) the training data.
Claim(s) 3 also includes the additional element of “a graphical user interface” which generally links the abstract idea to a particular technological environment or field of use. MPEP 2106.04(d)(I) and MPEP 2106.05(A) indicate that merely “generally linking” the abstract idea to a particular technological environment or field of use cannot provide a practical application or significantly more.
Claim(s) 13, 21 also includes the additional element of “a graphical user interface” which is analyzed the same as the processor/memory/CRM of Claim 11 (i.e., a generic computer component) and does not provide a practical application or significantly more for the same reasons.
Note: Claim 9 recites “training one or more artificial intelligence models.” When given its broadest reasonable interpretation in light of the disclosure, the training of AI models on first data, validating on second data and testing using third data represents the creation of mathematical interrelationships between data. There is no description in the as-filed disclosure as to how the models are trained. As such, the training of the machine learning model represents a mathematical concept that is interpreted to be part of the identified abstract idea, supra. Alternately, the training represents steps a person would follow to train AI models (i.e., the described linear regression model of Spec. Para. 0027). The types of identified abstract ideas are considered together as a single abstract idea for analysis purposes.
Response to Arguments
Rejection under 35 U.S.C. § 101
Regarding the rejection of Claims 1-26, Applicant has cancelled claims 2, 12, and 20, rendering the rejection of those claims moot. Regarding the remaining claims, the Examiner has considered the Applicant’s arguments; however, the arguments are not persuasive. Applicant argues:
While scheduling in its most rudimentary form can be a human activity, the claimed invention is not merely an abstract concept performed mentally or via simple, generic instructions.
Regarding (a), the Examiner respectfully disagrees. Whether or not the identified abstract idea is “rudimentary” or not is not a consideration when the claim is characterized as Certain Methods of Organizing Human Activity (“CMOHA”). Even complex claims may fall under CMOHA, especially given the fact that CMOHA includes the use of a computer. Applicant has pointed to nothing that counters this. Further, the identified abstract idea was not characterized as a mental process.
Instead, it is directed to a specific, machine-implemented process designed to solve a complex, technical problem that traditional human or basic computational methods cannot effectively address: the inefficient utilization and under-capacity of hospital operating rooms due to the rigidities of "block time" scheduling ([0003]-[0005.]).
Regarding (b), the Examiner respectfully disagrees. There is no technical problem that the claimed invention is solving. The Applicant has not identified nor can the Examiner locate any problem that was caused by the technological environment to which the claims are confined (a general-purpose computer). At best, the “problem” asserted by the Applicant is an administrative problem. The cited Specification paragraphs [0003-0005] fully support the Examiners position. Applicant has described an administrative problem that the Applicant is solving using a generic computer.
The Examiner states that the claims, under their broadest reasonable interpretation, cover methods of organizing human activity, specifically stating that a linear regression model (Spec. Para, 0027) can he "performed by a human" and is thus part of the abstract idea. This argument fails to appreciate the scale, real-time nature, and integration of the claimed elements. While, an isolated calculation of a linear regression might be performed by a human, the claimed invention is not merely such a calculation.
Regarding (c), the Examiner respectfully disagrees for multiple reasons. First, the rejection stated that the AI model (the linear regression) was part of the abstract idea. It is not the whole abstract idea. This characterization remains. Second, the claims to not describe a large scale or define real-time. Even if they did, this would not remove them from the CMOHA characterization because these features are part of the rules or instructions. The Examiner notes that there is nothing in MPEP 2106 that states that a large amount of data or performing actions “in real-time” remove the claim from being characterized as CHOMA. The Examiner thanks the Applicant for acknowledging that linear regression—the AI of the claim—can be performed by a human.
A human cannot process this volume and complexity of realtime data to discern minute-by-minute patterns for availability. […] This [identifying small gaps or available time slots] is fundamentally different from a human simply assigning existing block times or calculating a Linear regression on static data. The Al performs a complex inference task to identify and create new opportunities that are otherwise hidden.
Regarding (d), the Examiner respectfully disagrees. Initially the Examiner notes that a large volume of data is not reflected in the claim. The claim requires, at minimum, one time slot, one virtual operating room, one probability score, and scheduling one operating room. This is hardly a large volume of data. Even if a large volume of data is present, this does not remove the claim from being characterized as CMOHA. Further, whether the claim is “fundamentally different” than what is currently performed does not remove it from encompassing a series of rules or instructions for a person to follow; the novelty of an abstract idea is immaterial to the subject matter eligibility analysis. Finally, the AI (linear regression) is merely used as a tool and is part of the rules or instructions and is part of the abstract idea.
The invention is explicitly tied to the technological environment of a hospital's operating room management system and solves the technical problem of under-utilization of physical operating rooms due to inefficient scheduling. The problem is not abstract; it's about optimizing the use of concrete, expensive physical assets.
Regarding (e), the Examiner respectfully disagrees. As discussed in the response to argument (b), the “under-utilization of physical operating rooms due to inefficient scheduling” is not a technical problem. And, the Examiner never stated that the problem was abstract; it is a real-world problem, just not a technical one.
This is a technical construct [of a virtual operating room] that dictates a specific, nonabstract way of managing resource capacity, going far beyond generic scheduling.
Regarding (f), the Examiner respectfully disagrees. The Examiner never stated that the claim encompassed “generic scheduling.”
This is a specific, automated, and data-driven process that determines the physical availability of a medical resource for a new task. This is not simply a human thinking about a schedule; it's a machine making a refined technical decision based on complex real-time data analysis to optimize physical resource utilization.
Regarding (g), the Examiner respectfully disagrees. The claim recites a series of rules or instructions to (to paraphrase) come up with a schedule for one or more operating rooms. The rejection did not state that the claim encompassed “simply a human thinking about a schedule.”
The claims impose meaningful limitations by requiring:
The input of "real-time operating room scheduling data" from specific hospital systems.
The application of a "trained artificial intelligence model" (programmed to perform complex inferences beyond human capability).
The output of "probability scores" for minute-by-minute availability.
The generation and use of a "virtual operating room" to hold these predicted slots.
The allocation based on a "pre-determined threshold probability score." These elements define a specific, non-abstract technological process for a particular application.
Regarding (h), the Examiner respectfully disagrees that the claims recite “meaningful limitations” sufficient to provide a practical application. Taking these arguments in turn:
That the data input and/or analysis is in “real-time” does not remove it from being characterized as CMOHA nor does it provide a practical application. “Real-time” is also a nebulous term that is undefined by the Applicant.
Applicant has admitted that linear regression (the AI of the claim) is within human capability. Even if it was an additional element (which it is not), this would generally link the claim to a technological environment and is eminently well-understood, routine, and conventional in the art.
The claim does not state that minute-by-minute output occurs. Even if it did, this does not provide a practical application by any measure in MPEP 2106.
The generation of “virtual operating rooms” is part of the rules or instructions. The fact that the operating rooms are “virtual” is a consequence of performing the abstract idea on a computer. In fact, “virtual” merely means not physically existing and thus, under the broadest reasonable interpretation, encompasses a person drawing a representation of the operating room(s) in crayon on a piece of paper.
The calculation of a probability score is part of the rules or instructions. It is unclear how this could possibly impose meaningful limitations on the claim such that the claim is subject matter eligible given the strictures of MPEP 2106.
As such, the arguments are not persuasive.
The inventive concept resides in the synergistic combination of the specific AI application, the generation and use of the "virtual operating room", and the precise probabilistic prediction for availability of new slots to solve the technical problem of operating room(s) underutilization.
Regarding (i), the Examiner respectfully disagrees. All of these features are part of the abstract idea and cannot provide an inventive concept. And, as discussed with respect to argument (b), no technical problem is present.
The invention materially improves a technological process (operating room scheduling and utilization) by allowing hospitals to identify and utilize latent capacity that would otherwise go wasted due to the limitations of human or generic scheduling systems. This leads to "increased efficiency, reduced costs, and improved patient access to care".
Regarding (j), the Examiner respectfully disagrees. The Examiner does not dispute that the claim may provide a solution to problems of efficiency, cost, and patient access to care; however, there is no technical problem present and thus a practical application is not present based on the ‘technical solution to a technical problem’ measure.
The memory/CRM and processor are not merely generic. They are specifically programed and configured to implement the novel functionalities described.:
The AI model's ability to learn complex patterns from massive, dynamic datasets that humans cannot discern ([0027]).
The computational logic to create and manage a "virtual operating room" as a functional scheduling entity.
The algorithms for calculating and acting upon "probability scores" for minute-by-minute availability. These elements transform the computer into a specialized machine for optimizing OR scheduling, providing specific functionality that is not a routine or conventional use of a computer.
Regarding (k), the Examiner respectfully disagrees. The memory/CRM and processor are purely generic. Were they not generic then the Applicant has not provided written description of these supposedly special computing devices. In the event that Applicant is arguing that a special-purpose computer is present, MPEP 2106(I) states that “[t]he programmed computer or ‘special purpose computer’ test of In re Alappat, 33 F.3d 1526, 31 USPQ2d 1545 (Fed. Cir. 1994) (i.e., the rationale that an otherwise ineligible algorithm or software could be made patent-eligible by merely adding a generic computer to the claim for the ‘special purpose’ of executing the algorithm or software) was superseded by the Supreme Court’s Bilski and Alice Corp. decisions. MPEP 2106.05(b)(I) states that the Examiner should determine whether the additional elements of the claim provide a practical application or significantly more that the judicial exception based on one or more of the measures in MPEP 2106.04 and/or MPEP 2106.05. In the present claims, the only additional element(s) is a general-purpose computer, which the courts have held is insufficient to provide a practical application or significantly more (see, e.g., Alice Corp.; MPEP 2106.04(d)(I)). Because neither a practical application nor significantly more is present, the claims are not subject matter eligible.
The Examiner has thoroughly reviewed the as-filed disclosure and cannot suggest a path forward that would render the claimed invention subject matter eligible.
Rejection under 35 U.S.C. § 112
Regarding the indefiniteness rejection of Claims 9 and 10, the Applicant has amended the claims to alleviate the indefiniteness issues. The rejection is withdrawn.
Rejection under 35 U.S.C. § 102/103
Regarding the rejection of Claims 1-26, Applicant has cancelled claims 2, 12, and 20, rendering the rejection of those claims moot. Regarding the remaining claims, the Examiner has considered the Applicant’s arguments in light of the present amendments and finds them persuasive. The prior art rejection is withdrawn.
Conclusion
Prior art made of record though not relied upon in the present basis of rejection are noted in the attached PTO 892 and include:
Souissi (U.S. Pre-Grant Patent Publication No. 2022/0020476) which discloses a scheduling system that adjusts scheduling based on patient status.
Matheson et al. (U.S. Patent No. 7,516,455) which discloses scheduling tasks based on minimized costs and a pair-wise probability conflict determination.
THIS ACTION IS MADE FINAL. 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 JASON S TIEDEMAN whose telephone number is (571)272-4594. The examiner can normally be reached 7:00am-4:00pm, off alternate Fridays.
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/JASON S TIEDEMAN/Primary Examiner, Art Unit 3683