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 .
Non-Statutory Double Patenting
The non-statutory 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 non-statutory 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 non-statutory 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 non-statutory 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.
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Claims 1-20 are rejected on the ground of non-statutory double patenting as being unpatentable over claims 1, 11, and 17 of U.S. Patent No. 12,148,512. Although the claims at issue are not identical, they are not patentably distinct from each other because they are patentably similar claims. The following table (Table 1) breaks down which claims are similar between the patent and this application:
Present Application
U.S. Patent No. 12,148,512
1
1
2
1
3
1
4
1
5
1
6
1
7
1
8
17
9
17
10
17
11
17
12
17
13
17
14
17
15
11
16
11
17
11
18
11
19
11
20
11
Table 1
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 1-20 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 1-7 are drawn to a system, claims 8-14 are drawn to a media, and claims 15-20 are drawn to a method, each of which is within the four statutory categories. Claims 1-20 are further directed to an abstract idea on the grounds set out in detail below. As discussed below, the claims do not include additional elements that are sufficient to amount to significantly more than the abstract idea because the additional computer elements, which are recited at a high level of generality, provide conventional computer functions that do not add meaningful limits to practicing the abstract idea (Step 1: YES).
Step 2A:
Prong One:
Claim 1 recites a) a system having one or more hardware processors configured to facilitate a plurality of operations, the operations comprising:
1) in response to a determination based on b) a machine-learning electronic model of whether to present a falls risk assessment on c) a clinician device, producing via the one or more hardware processors a prompt at the clinician device for clinical input comprising falls-risk assessment information, wherein:
b1) the machine-learning electronic model is trained via information corresponding to instances of medical information indicating patient assignment to a virtual sitter, and
the determination corresponds to applying to the trained machine-learning electronic model an instance of medical information associated with a patient;
2) based on the producing of the prompt at the clinician device, receiving a reply at the clinician device corresponding to one or both of the clinical input and the falls-risk assessment information;
3) initiating generation of an order to assign d) processor based virtual sitter technology, wherein the order is based on the reply and associated with activation of a processor coupled camera in a patient room;
4) subsequent to assignment of the virtual sitter technology, e) electronically receiving the content relating to an update for the patient, the update for the patient corresponding to the information, to f) a processor-based virtual sitter device, and/or to data associated with operation of the camera; and
5) in response at least to receiving the content relating to the update for the patient, and based on one or both of the processor-based virtual sitter device and the data associated with the operation of the camera:
determining via the one or more hardware processors to continue that the virtual sitter technology is to be continued for monitoring the patient.
Claim 1 also recites, in part, performing the steps of 1) in response to a determination based on a model of whether to present a falls risk assessment, producing a prompt for clinical input comprising falls-risk assessment information, wherein: the determination corresponds to applying to the updated model an instance of medical information associated with a patient, 2) based on the producing of the prompt, receiving a reply corresponding to one or both of the clinical input and the falls-risk assessment information, 3) initiating generation of an order to assign sitter technology (assigning a person), wherein the order is based on the reply and associated with activation of a processor coupled camera in a patient room, 4) subsequent to assignment of the sitter technology, receiving the content relating to an update for the patient, the update for the patient corresponding to the information, to a sitter, and/or to data associated with operation of the camera, and 5) in response at least to receiving the content relating to the update for the patient, and based on one or both of the sitter and the data associated with the operation of the camera: determining to continue that the sitter technology is to be continued for monitoring the patient. These steps correspond to Certain Methods of Organizing Human Activity, more particularly, managing personal behavior or relationships or interactions between people (including following rules or instructions). For example, one can determine if a patient needs monitoring and assign them a sitter. Independent claims 8 and 15 recite similar limitations and are also directed to an abstract idea under the same analysis.
Depending claims 2-7, 9-14, and 16-20 include all of the limitations of claims 1, 8, and 15, and therefore likewise incorporate the above described abstract idea. Depending claims 3, 10, and 17 add the additional step of “causing storage of the falls-risk assessment information as an update in an electronic health record (EHR) of the patient”; claims 4, 11, and 18 add the additional step of “causing a processor-based virtual sitter device to electronically monitor electronic signal information associated with the camera from a location remote to the camera based on the order”; and claims 5, 12, and 19 add the additional step of “electronically communicate update data associated with falls assessment information corresponding to the patient based on the monitoring”. Additionally, the limitations of depending claims 2, 6-7, 9, 13-14, 16, and 20 further specify elements from the claims from which they depend on without adding any additional steps. These additional limitations only further serve to limit the abstract idea. Thus, depending claims 2-7, 9-14, and 16-20 are nonetheless directed towards fundamentally the same abstract idea as independent claims 1, 8, and 15 (Step 2A (Prong One): YES).
Prong Two:
This judicial exception is not integrated into a practical application. In particular, the claims recite the additional elements of – using a) a system having one or more hardware processors, b) a machine-learning electronic model, b1) the machine-learning electronic model is trained via information corresponding to instances of medical information indicating patient assignment to a virtual sitter, c) a clinician device, d) processor based virtual sitter technology, e) electronically receiving, f) a processor-based virtual sitter device, g) electronically monitor (from claim 4, 11, and 18), and h) electronically communicate (from claim 5, 12, and 19) to perform the claimed steps.
The a) system having one or more hardware processors, b) machine-learning electronic model, b1) the machine-learning electronic model is trained via information corresponding to instances of medical information indicating patient assignment to a virtual sitter, d) processor based virtual sitter technology, and f) processor-based virtual sitter device in these steps are recited at a high-level of generality (i.e., as generic components performing generic computer functions) such that they amount to no more than mere instructions to apply the exception using generic computer components (see: Applicant’s specification, paragraph [0031] where there are well-known components for these computing elements, see MPEP 2106.05(f)).
Additionally, the c) clinician device in these steps adds insignificant extra-solution activity to the abstract idea which amounts to mere data gathering, see MPEP 2106.05(g).
The e) electronically receiving, g) electronically monitor, and h) electronically communicate in these steps generally links the abstract idea to a particular technological environment or field of use (such as computing, see MPEP 2106.05(h)).
Dependent claims recite additional subject matter which amount to limitations consistent with the additional elements in the independent claims. Looking at the limitations as an ordered combination adds nothing that is not already present when looking at the elements taken individually. There is no indication that the combination of elements improves the functioning of a computer or improves any other technology. Their collective functions merely provide conventional computer implementation and do not impose a meaningful limit to integrate the abstract idea into a practical application.
Accordingly, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims are directed to an abstract idea (Step 2A (Prong Two): NO).
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) a system having one or more hardware processors, b) a machine-learning electronic model, b1) the machine-learning electronic model is trained via information corresponding to instances of medical information indicating patient assignment to a virtual sitter, c) a clinician device, d) processor based virtual sitter technology, e) electronically receiving, f) a processor-based virtual sitter device, g) electronically monitor, and h) electronically communicate to perform the claimed steps amounts to no more than insignificant extra-solution activity in the form of WURC activity (well-understood, routine, and conventional activity), a general linking to a particular technological field, and mere instructions to apply the exception using a generic computer component that does not offer “significantly more” than the abstract idea itself because the claims do not recite an improvement to another technology or technical field, an improvement to the functioning of any computer itself, or provide meaningful limitations beyond generally linking an abstract idea to a particular technological environment. It should be noted that the claims do not include additional elements that amount to significantly more than the judicial exception because the Specification recites mere generic computer components, as discussed above that are being used to apply certain method steps of organizing human activity. Specifically, MPEP 2106.05(d), MPEP 2106.05(f), and MPEP 2106.05(h) recite that the following limitations are not significantly more:
Simply appending well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception, e.g., a claim to an abstract idea requiring no more than a generic computer to perform generic computer functions that are well-understood, routine and conventional activities previously known to the industry, as discussed in Alice Corp., 573 U.S. at 225, 110 USPQ2d at 1984 (see MPEP § 2106.05(d));
Adding the words "apply it" (or an equivalent) with the judicial exception, or mere instructions to implement an abstract idea on a computer, e.g., a limitation indicating that a particular function such as creating and maintaining electronic records is performed by a computer, as discussed in Alice Corp., 134 S. Ct. at 2360, 110 USPQ2d at 1984 (see MPEP § 2106.05(f)); and
Generally linking the use of the judicial exception to a particular technological environment or field of use, e.g., a claim describing how the abstract idea of hedging could be used in the commodities and energy markets, as discussed in Bilski v. Kappos, 561 U.S. 593, 595, 95 USPQ2d 1001, 1010 (2010) or a claim limiting the use of a mathematical formula to the petrochemical and oil-refining fields, as discussed in Parker v. Flook, 437 U.S. 584, 588-90, 198 USPQ 193, 197-98 (1978) (MPEP § 2106.05(h)).
The current invention determines a continuation of monitoring utilizing a) a system having one or more hardware processors, b) a machine-learning electronic model, b1) the machine-learning electronic model is trained via information corresponding to instances of medical information indicating patient assignment to a virtual sitter, d) processor based virtual sitter technology, and f) a processor-based virtual sitter device, thus these computing components are adding the words “apply it” with mere instructions to implement the abstract idea on a computer.
The c) clinician device in these steps add insignificant extra-solution activity/pre-solution activity in the form of WURC activity to the abstract idea. The following is an example of a court decision demonstrating computer functions as well-understood, routine and conventional activities, e.g. see MPEP 2106.05(d)(II): Receiving or transmitting data over a network, e.g. see Intellectual Ventures v. Symantec – similarly, the current invention receives clinical input data, and transmits the data to a clinical device over a network, for example the Internet.
Additionally, the e) electronically receiving, g) electronically monitor, and h) electronically communicate generally links the abstract idea to a particular technological environment or field of use. The following represent an example that courts have identified as generally linking the abstract idea to a particular technological environment (e.g. see MPEP 2106.05(h)): Limiting the abstract idea data to ***, because limiting application of the abstract idea to *** is simply an attempt to limit the use of the abstract idea to a particular technological environment, e.g. see Electric Power Group, LLC v. Alstom S.A.
Mere instructions to apply an exception using generic computer components, a general linking to a particular technological field, or insignificant extra-solution activity in the form of WURC activity cannot provide an inventive concept. The claims are not patent eligible (Step 2B: NO).
Claims 1-20 are therefore rejected under 35 U.S.C. 101 as being directed to non-statutory subject matter.
Relevant References
Examiner would like to cite the following references as being relevant in view of the claims not having an art rejection: U.S. Patent No. 9,368,014 to Bittman, U.S. 2015/0363567 to Pettus, U.S. 2015/0221202 to Russell et al., and U.S. 2017/0147770 to Xu et al.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Steven G.S. Sanghera whose telephone number is (571)272-6873. The examiner can normally be reached M-F 7:30-5:00 (alternating Fri).
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/STEVEN G.S. SANGHERA/Primary Examiner, Art Unit 3684
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