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 .
Response to Arguments
Applicant's arguments filed with respect to rejection under 35 USC 101 have been fully considered but they are not persuasive. Applicant asserts the claims cannot be practically performed in the human mind. Examiner has updated the rejection and upholds the assertion the claims are Certain Methods of Organizing Human activity. Specifically, the process of receiving data, predicting resignation likelihoods, determining that the resignation likelihoods exceed a threshold, receiving additional data, predicting second resignation likelihoods by simulating resignation likelihood based on data and a computer-implemented machine learning model, comparing to a threshold and modifying an electronic scheduling system relates to managing personal behavior or relationships or interactions between people. Applicant compares claim 1 to claim 3 of Example 48. Examiner notes the facts of the example claim 3 do not align with applicant’s claim 1. In the example claim 3, it was determined the claim recited mathematical calculations which fall within the mathematical concepts group of abstract ideas. The instant claims do not recite mathematical concepts, thus the analysis applied to example claim 3 is not analogous to the analysis of pending claim 1.
Applicant argues the claim reflect technical improvements to nurse scheduling discussed in the specification. Those portions of the specification describe the improvement is in reducing turnover to create a work schedule that minimizes the likelihood of resignation. This is an abstract idea and not a technical improvement. An abstract idea, or judicial exception is not eligible subject matter.
With respect to step 2B, Applicant contends the claims recite a particular solutions to a problem, however, the portions of the claim to which Applicant refers are part of the established abstract idea. It is the additional element that must integrate the abstract idea into a practical application.
In response to Applicant’s comments about Certain Methods of Organizing Human Activity, examiner notes the claims, as amended, are concerned with risk mitigation which can be associated with commercial or legal interactions and/or fundamental business principles.
Applicant’s arguments filed with respect to rejections under 35 USC 102 and 35 USC 103 have been fully considered and are persuasive. The rejections under 35 USC 102 and 35 USC 103 have been withdrawn.
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.
Claim(s) 1, 3-4, 7, 8, 15, 17-19 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. Claim(s) 1, 3-4, 7, 8, 15, 17-19 is/are within the four potentially eligible categories of invention (a process, a machine and an article of manufacture, respectively), satisfying Step 1 of the Subject Matter Eligibility (SME) test.
As per Prong One of Step 2A of the §101 eligibility analysis set forth in MPEP 2106, the Examiner notes that the claims recite mental processes and certain methods of organizing human activity.
More specifically, independent claims 1 and 15 recite:
receiving a set of attributes for a nurse, the set of attributes including one or more attributes that describe the nurse;
receiving a first plurality of shift variables, each shift variable of the first plurality of shift variables describing a characteristic of a work condition of a first shift in a nursing workplace, such that the first plurality of shift variables describe a first plurality of work conditions of the first shift;
predicting a first plurality of resignation likelihoods for the first plurality of work conditions by simulating, by a simulator, resignation likelihoods for the nurse based on the set of attributes, the first plurality of shift variables, and
determining that a threshold quantity of resignation likelihoods of the first plurality of resignation likelihoods exceed a resignation likelihood threshold;
receiving a second plurality of shift variables, each shift variable of the second plurality of shift variables describing a characteristic of a work condition of a second shift in the nursing workplace, such that the second plurality of shift variables describes a second plurality of work conditions of the second shift, and such that each resignation likelihood of the second plurality of resignation likelihoods corresponds to one shift variable of the second plurality of shift variables;
predicting a second plurality of resignation likelihoods for the second plurality of work conditions by simulating, by the simulator, resignation likelihoods for the nurse based on the set of attributes, the second plurality of shift variables, and the computer-implemented machine learning model;
determining that less than the threshold quantity of resignation likelihoods of the second plurality of resignation likelihoods exceed the resignation likelihood threshold; and
responsive to determining that the threshold quantity of resignation likelihoods of the first plurality of resignation likelihoods exceed the resignation likelihood threshold and that less than the threshold quantity of resignation likelihoods of the second plurality of resignation likelihoods exceed the resignation likelihood threshold, modifying an electronic scheduling system to schedule the nurse to the second shift instead of the first shift.
The claims recite data analysis steps to predict a resignation likelihood based on nursing work conditions. Data analysis steps related to staff retention and risk of resignation is considered certain methods of organizing human activity. The concept of staff retention and risk evaluation is a fundamental business practice long prevalent in our system of commerce.
The nominal recitation of a simulator and computer implemented machine learning in claims 1 and 11 and the system of claim 15 does not necessarily preclude the claim from reciting an abstract idea as evidenced by the analysis at Prong 2 of Step 2A.
Regarding Prong Two of Step 2A, a claim reciting an abstract idea must be analyzed to determine whether any additional elements in the claim integrate the judicial exception into a practical application. Limitations that are indicative of integration into a practical application include: Improvements to the functioning of a computer, or to any other technology or technical field, as discussed in MPEP 2106.05(a); Applying or using a judicial exception to effect a particular treatment or prophylaxis for disease or medical condition – see Vanda Memo; Applying the judicial exception with, or by use of, a particular machine, as discussed in MPEP 2106.05(b); Effecting a transformation or reduction of a particular article to a different state or thing, as discussed in MPEP 2106.05(c); and Applying or using 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 more than a drafting effort designed to monopolize the exception, as discussed in MPEP 2106.05(e) and the Vanda Memo issued in June 2018.
In this case, the independent claims do not include limitations that meet the criteria listed above, thus the abstract idea is not integrated into a practical application. The simulator and computer implemented machine learning of claims 1 and 11, and the system with database, processor, user interface and computer readable memory amount to using a computer as a tool to perform the abstract idea. There is no improvement to the technology or technological field and therefore is no integration into a practical application.
The dependent claims add additional details to the abstract idea and some recite additional elements that do not integrate the abstract idea into a practical application.
Claims 3 and 17 recite the variable classes which is certain methods of organizing human activity and mental process as applied to claim 2 without any additional elements. Thus, there is no integration into a practical application.
Claim 4 describes variable subclasses and identifying work conditions belonging to each subclass which is a mental process – observation/evaluation. There are no additional elements to integrate the abstract idea into a practical application.
Claims 7 and 18-19 recite steps to schedule a nurse which is mental process [evaluation] and certain methods of organizing human activity. There are no additional elements to integrate the abstract idea into a practical application.
Claim 8 recites training the computer implemented machine learning model which amounts to using a computer as a tool to perform and abstract mathematical process.
The claims do not include limitations beyond generally linking the use of the abstract idea to a particular technological environment. When considered individually and in combination, the system and software claim elements only contribute generic recitations of technical elements to the claims. It is readily apparent, for example, that the claim is not directed to any specific improvements of these elements. The invention is not directed to a technical improvement. When the claims are considered individually and as a whole, the additional elements noted above appear to merely apply the abstract concept to a technical environment in a very general sense.
Lastly and in accordance with Step 2B, the claim does 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, and when considered individually and in combination, the additional elements amount to no more than mere instruction to apply the exception using generic computer component. Mere instruction to apply an exception using generic computer components cannot provide an inventive concept.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Pertinent prior art is listed in the PTO-892.
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 JOHNNA LOFTIS whose telephone number is (571)272-6736. The examiner can normally be reached M-F 7:00am-3:30pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Brian Epstein can be reached at 571-270-5389. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JOHNNA LOFTIS
Primary Examiner
Art Unit 3625
/JOHNNA R LOFTIS/Primary Examiner, Art Unit 3625