KONINKLIJKE PHILIPS N.V.

Patent Trials and Appeals Board

Jan 26, 2021

2020005659 (P.T.A.B. Jan. 26, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/035,617 05/10/2016 Julian Charles NOLAN 2013P01496WOUS 8157
24737 7590 01/26/2021
PHILIPS INTELLECTUAL PROPERTY & STANDARDS
465 Columbus Avenue
Suite 340
Valhalla, NY 10595
EXAMINER
REICHERT, RACHELLE LEIGH
ART UNIT PAPER NUMBER
3686
NOTIFICATION DATE DELIVERY MODE
01/26/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
katelyn.mulroy@philips.com
marianne.fox@philips.com
patti.demichele@Philips.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JULIAN CHARLES NOLAN and
MATTHEW JOHN LAWRENSON

Appeal 2020-005659
Application 15/035,617
Technology Center 3600

___________

Before RICHARD M. LEBOVITZ, RACHEL H. TOWNSEND, and
MICHAEL A. VALEK, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
Examiner rejected the claims under 35 U.S.C. § 101 as lacking patent
eligibility and under 35 U.S.C. § 103 as obvious. Pursuant to 35 U.S.C.
§ 134(a), Appellant1 appeals from Examiner’s decision to reject the claims.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Koninklijke
Philips N.V. Appeal Br. 2.
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STATEMENT OF THE CASE
Examiner rejected claims 1–15 in the Final Office Action (“Final
Act.”) as follows
1. Claims 1–15 under 35 U.S.C. § 101 “for being directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or an abstract idea)
without significantly more than the exception.” Final Act. 4.
2. Claims 1, 4, 5, 14, and 15 under 35 U.S.C. § 103 as obvious in view
of Duhamel et al. (WO 2010/141957 A2, published Dec. 9, 2010)
(“Duhamel”), Partovi (U.S. Pub. No. 2012/0129139 A1, published May 24,
2012) (“Partovi”), and Soni (U.S. Pub. No. 2011/0178820 A1, published
July 21, 2011) (“Soni”). Final Act. 10–11.
3. Claims 2 and 6–12 under 35 U.S.C. § 103 as obvious in view of
Duhamel, Partovi, and Soni, and further view of Mestas (US 2014/0244009
A1, published Aug. 28, 2014) (“Mestas”). Final Act. 15.
4. Claim 3 under 35 U.S.C. § 103 as obvious in view of Duhamel,
Partovi, Soni, and Mestas, and further in view of Fox et al. (WO
2012/127337 A2, published Sept. 27, 2012) (“Fox”). Final Act. 20.
5. Claim 13 under 35 U.S.C. § 103 as obvious in view of Duhamel,
Partovi, Soni, and Remmers et al. (US 5,645,053, issued July 8, 1997)
(“Remmers”). Final Act. 20.
There are three independent claims on appeal, claims 1, 12, and 14.
Appellant did not provide separate arguments for the claims. We therefore
have selected claim 1 as representative. Claim 1 is reproduced below, with
indentations and bracketed annotations added for reference to the recited
limitations:
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1. Therapy support system for improving the compliance of a
patient using a therapeutic device, comprising:
[1] a data interface for receiving at least one device
parameter value of a first patient indicative of a therapeutic
device usage of the first patient;
[2] a target unit for determining or receiving at least one
individual target indicative of a targeted therapeutic device
usage of the first patient, the at least one individual target
having an associated time period;
[3] a gamification unit for determining an individual
performance indicator based on a difference between the at
least one device parameter value and the at least one individual
target,
[3a] said individual performance indicator being
indicative of a progress of the first patient toward reaching the
at least one individual target,
[3b] said gamification unit being further
configured to determine feedback information during the time
period associated with the at least one individual target,
[3c] said feedback information being based on said
individual performance indicator and an amount of time
remaining in the time period associated with the at least one
individual target,
[3d] said feedback information including an
assessment of the first patient’s perspective of reaching the at
least one individual target by an end of the time period
associated with the at least one individual target; and
[4] a feedback unit for providing the feedback
information to the first patient.

CLAIM 1
Claim 1 is directed to a “[t]herapy support system for improving the
compliance of a patient using a therapeutic device.” The claimed system
involves determining a difference (limitation [3]) between a target usage of a
device (limitation [2]) and the actual use of the device (limitation [1]), which
the claim identifies as “an individual performance indicator.” The claimed
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system also provides feedback to the patient “during the time period” when
the device is being used (limitation [3b]). The Specification exemplifies the
therapeutic device as a device for treatment of obstructive sleep apnea, such
as a continuous positive airway pressure (CPAP) machine. Spec. 1–28; 4:3–
10.
The claim comprises a gamification unit for determining feedback
information during the time the device is used. The feedback is based on an
“individual performance indicator” and “an amount of time remaining in the
time period” to achieve the target usage of the device (limitation [3c]). The
feedback also includes “an assessment of the first patient’s perspective of
reaching the at least one individual target by an end of the time period
associated with the at least one individual target” ([3d]), which Appellant
explains involves informing the patient of the time remaining to achieve the
target usage of the device. Reply Br. 5; see also Spec. 18. Limitation [3d]
also allows the patient to assess in the patient’s mind the likelihood of
reaching the target usage.

PATENT ELIGIBILITY
Principles of Law
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
However, not every discovery is eligible for patent protection. Diamond v.
Diehr, 450 U.S. 175, 185 (1981). “Excluded from such patent protection are
laws of nature, natural phenomena, and abstract ideas.” Id. The Supreme
Court articulated a two-step analysis to determine whether a claim falls
within an excluded category of invention. Alice Corp. v. CLS Bank Int’l, 573
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U.S. 208 (2014); Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 75–77 (2012).
In the first step, it is determined “whether the claims at issue are
directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If
it is determined that the claims are directed to an ineligible concept, then the
second step of the two-part analysis is applied in which it is asked “[w]hat
else is there in the claims before us?” Id. (alteration in original) (citation and
quotation marks omitted). The Court explained that this step involves
a search for an “‘inventive concept’”—i.e., an element or
combination of elements that is “sufficient to ensure that the
patent in practice amounts to significantly more than a patent
upon the [ineligible concept] itself.”
Alice, 573 U.S. at 217–18 (alteration in original) (citing from Mayo, 566
U.S. at 75–77).
Alice, relying on the analysis in Mayo of a claim directed to a law of
nature, stated that in the second part of the analysis, “the elements of each
claim both individually and ‘as an ordered combination’” must be
considered “to determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.” Alice, 573 U.S. at 217
(citation omitted).
The PTO published revised guidance on the application of 35 U.S.C.
§ 101, USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019
Eligibility Guidance”) (we cite to the Federal Register where the 2019
Eligibility Guidance was published). This guidance provides additional
direction on how to implement the two-part analysis of Mayo and Alice.
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Step 2A, Prong One, of the 2019 Eligibility Guidance, looks at the
specific limitations in the claim to determine whether the claim recites a
judicial exception to patent eligibility. In Step 2A, Prong Two, the claims are
examined to identify whether there are additional elements in the claims that
integrate the exception in a practical application, namely, is there a
“meaningful limit on the judicial exception, such that the claim is more than
a drafting effort designed to monopolize the judicial exception.” 84 Fed.
Reg. 54 (Prong Two).
If the claim recites a judicial exception that is not integrated into a
practical application, then as in the Mayo/Alice framework, Step 2B of the
2019 Eligibility Guidance instructs us to determine whether there is a
claimed “inventive concept” to ensure that the claims define an invention
that is significantly more than the ineligible concept itself. 84 Fed. Reg. 56.
With these guiding principles in mind, we proceed to determine
whether the claimed subject matter in this appeal is eligible for patent
protection under 35 U.S.C. § 101.

Discussion
Claim 1 is directed to a system comprising an interface and various
units for performing certain functions. We consider the functions performed
by the interface and units to be accomplished using hardware, such as a
computer and computer display. Spec. 17: 1–9. Hardware is a
“manufacture,” one of the broad statutory categories of patent-eligible
subject matter under 35 U.S.C. § 101. Therefore, following the first step of
the Mayo/Alice analysis, we find that the claim is directed to a statutory class
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of invention. We thus proceed to Step 2A, Prong One, of the Eligibility
Guidance.

Step 2A, Prong One
In Step 2A, Prong One, of the 2019 Eligibility Guidance, the specific
limitations in the claim are examined to determine whether the claim recites
a judicial exception to patent eligibility, namely, whether the claim recites an
abstract idea, law of nature, or natural phenomenon. The 2019 Eligibility
Guidance directs examiners to search each limitation in the claim to
determine whether it recites abstract an abstract idea. 84 Fed. Reg. 54.
Examiner found that the claims cover “certain method[s] of
organizing human activity,” which is one of the groupings of abstract ideas
listed in the 2019 Eligibility Guidance. Final Act. 4 (emphasis omitted).
Specifically, Examiner found that the claim is directed to “the abstract idea
of improving patient compliance” (Final Act. 4), which is “managing
personal behavior,” one of the examples of “[c]ertain methods of organizing
human activity” also listed in the 2019 Eligibility Guidance. 84 Fed. Reg.
52; see Final Act. 4. Examiner cited the limitations of claim 1 of [3]
“determining an individual performance indicator based on a difference
between the at least one device parameter value and the at least one
individual target” where the [3a] “individual performance indicator being
indicative of a progress of the first patient toward reaching the at least one
individual target” and [3c] “feedback information being based on said
individual performance indicator and an amount of time remaining in the
time period associated with the at least one individual target” as covering the
abstract idea of improving patient compliance.
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We agree with Examiner’s determination. The preamble of claim 1
recites that the “system” is “for improving the compliance of a patient using
a therapeutic device.” A patient’s compliance of using a therapeutic device,
such as a CPAP machine, is a human activity because it involves monitoring
and attempting to modify the actions of a human to use the therapeutic
device. Compliance is specifically monitored by limitation [3] of claim 1 of
determining the difference between the individual’s target ([2] of claim) and
the individual’s actual usage of the device ([1] of claim). “Individual
performance,” as recited in the claim, is human action and therefore also a
human activity. Feedback is provided to the patient by letting the patient
know how much time is remaining between the target usage of the device
and the actual device usage (limitations [3a], [3c]) to determine the patient’s
perspective of reaching the target usage of the device (limitation [3d]).
These steps are aimed at improving the patient’s compliance with using the
therapeutic device which is a human activity because it involves the
performance of a human.
Appellant’s arguments are mostly directed to Step 2A, Prong Two,
and do not identify an error in Examiner’s determination that the claim
recites the abstract idea of organizing human activity. Consequently, we
proceed to the next step of the analysis.

Step 2A, Prong Two
Prong Two of Step 2A under the 2019 Eligibility Guidance asks
whether there are additional elements that integrate the exception into a
practical application. As explained in the 2019 Eligibility Guidance,
integration may be found when an additional element “reflects an
improvement in the functioning of a computer, or an improvement to other
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technology or technical field” or “applies or uses 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.”
84 Fed. Reg. 55.
Appellant argues that “any alleged abstract idea” is integrated into a
practical application. Appeal Br. 9. Appellant states that the claimed system
“uses gamification techniques as part of the therapy in order that the patient
interprets usage of the therapeutic device as a game and, therefore, is
motivated to win or perform well in the game by complying with the
prescribed therapy.” Id. Appellant further states that “the feedback
information provided to the patient, which includes an assessment of the
patient’s perspective of reaching the target by an end of the time period
associated with the target” provides the motivation to increase efforts if the
patient’s “perspective of reaching the target is poor or continue their efforts
if their perspective is good.” Id. at 10.
The limitations in the claim that Appellant identifies as improving
patient compliance are part of the abstract idea of organizing human
behavior and do not provide an improvement to a technology or a technical
field. 84 Fed. Reg. 55 (An additional element reflects an improvement in the
functioning of a computer, or an improvement to other technology or
technical field.) We reach this conclusion because the limitations of
determining the progress made toward reaching the therapeutic target [3]
and determining the feedback of the progress based on the time remaining to
reach the target ( [3a], [3c]) that is to be provided to the patient are
accomplished without an additional element that provides a technical
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improvement to the system of improving patient compliance. As explained
in Boom! Payments, Inc. v. Stripe, Inc., -- Fed. Appx. --, 2021 WL 116545
(Fed. Circ. 2021) (nonprecedential), “the specific steps of the claims are
nothing more than the steps necessary to perform that function,” namely the
abstract idea.
Here, claim 1 effects a simple subtraction, i.e., “a difference
between,” to determine the patient’s progress in reaching a target goal of
using a therapeutic device (step [3]), but does not provide any additional
element to make the determination or to use it to effect a modification of the
patient’s behavior. The determined difference is simply used to provide
information in the form of feedback to the patient. The patient is simply
apprised of the progress toward the therapeutic goal, giving the patient a
numerical perspective on the patient’s progress which can be used to provide
a quantitative assessment of the patient reaching the target in the time
remaining in the associated time period. (See Spec. 18.)
For this reason, we do not agree with Appellant that there is no pre-
emption or monopolization of the “gamification technique.” Appeal Br. 10.
To the contrary, the claim merely makes a computation about how much
time is remaining to achieve a targeted goal and provides feedback to the
patient of such, without any limitation as to how the time is determined
beyond the abstract mathematical computation or how feedback information
is provided such that it effects patient usage of the device. As explained in
Dropbox, Inc. et al. v. Synchronism Technologies, Inc., 815 Fed. Appx. 529,
533 (Fed. Cir. 2020) (nonprecedential):
The patent has to describe how to solve the problem in a
manner that encompasses something more than the “principle in
the abstract.” See [ChargePoint, Inc. v. SemaConnect, Inc., 920
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F.3d 759, 769 (Fed. Circ. 2019)] (explaining that an invention
may not be patent eligible if the “claims ‘were drafted in such a
result-oriented way that they amounted to encompassing the
‘principle in the abstract’ no matter how implemented’”
(quoting Interval Licensing LLC v. AOL, Inc., 896 F.3d 1335,
1343 (Fed. Cir. 2018))).
In SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir.
2018), where “[t]he focus of the claims” was on “selecting certain
information, analyzing it using mathematical techniques, and reporting or
displaying the results of the analysis,” the court concluded that the claims
were directed to an abstract idea (“That is all abstract.”). We find that the
claims here are deficient for the same reasons as in SAP.
Appellant also contend that the claims are patent-eligible because
“claim 1 also applies or uses any alleged abstract idea to effect a particular
treatment of a disease or medical condition” by “improving the patient's
compliance with meeting the targeted usage of the therapeutic device.”
Appeal Br. 11.
This argument does not persuade us that the Examiner erred in
determining that the abstract idea is not integrated into a practical
application. The system of claim 1 does not implement patient usage of the
therapeutic device to effect treatment of a medical condition. Instead, the
method only provides “feedback” to the patient to hopefully inspire usage
that will effect a treatment. Indeed, by Appellant’s own admission, the hope
is that the system provides motivation to the patient to reach the targeted
therapeutic device usage and increase efforts to do so (Appeal Br. 10)2 – but

2 “Thus, using the therapy support system recited in independent claim 1, the
patient is likely to interpret reaching the targeted therapeutic device usage
within its associated time period as a game and will be motivated to win the
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does not have any step in which compliance is actually required and
necessarily implemented. In contrast, in Vanda Pharmaceuticals Inc. v.
West-Ward Pharmaceuticals, 887 F.3d 1117 (Fed. Cir. 2018), the claims
performed a genotype assay and then administered a specific drug in
response to a determination about the patient’s genotype. In finding the
claims patent-eligible, the court explained:
the claims here require a treating doctor to administer
iloperidone in the amount of either (1) 12 mg/day or less or (2)
between 12 mg/day to 24 mg/day, depending on the result of a
genotyping assay. The specification further highlights the
significance of the specific dosages by explaining how certain
ranges of administered iloperidone correlate with the risk of
QTc prolongation. See, e.g., ’610 patent at col. 4 ll. 1–15. Thus,
the ’610 patent claims are “a new way of using an existing
drug” that is safer for patients because it reduces the risk of
QTc prolongation. Mayo, 566 U.S. at 87, 132 S.Ct. 1289.
Vanda, 887 F.3d at 1135.
Claim 1, by contrast, is not a new way of using a therapeutic device
and the feedback provided to the patient by the support system is only
motivation to use the device, but there is no requirement by the claim to
actually use the therapeutic device in a particular manner. Consequently, we
do not agree with Appellant that the claim “effects” a medical treatment. The
claim merely informs a patient of the patient’s progress in using the device,
but provides no technology to effect the actual use of that device.

game by reaching the targeted therapeutic device usage by the end of the
associated time period. The feedback information provided to the patient,
which includes an assessment of the patient's perspective of reaching the
target by an end of the time period associated with the target, motivates the
patient to increase their efforts if their perspective of reaching the target is
poor or continue their efforts if their perspective is good.” Appeal Br. 10.
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Step 2B
Because we determined that the judicial exception is not integrated
into a practical application, we proceed to Step 2B of the Eligibility
Guidelines, which asks whether there is an inventive concept. In making this
Step 2B determination, we must consider whether there are specific
limitations or elements recited in the claim “that are not well-understood,
routine, conventional activity in the field, which is indicative that an
inventive concept may be present” or whether the claim “simply appends
well-understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception,
indicative that an inventive concept may not be present.” 84 Fed. Reg. 56
(footnote omitted).
Appellant did not provide arguments as to why the claims, when
considered as an ordered combination, provides an inventive concept.
Rather, Appellant ended their argument by stating “[f]or at least the
foregoing reasons, Appellant submits that under step 2A of the 2019 Revised
Patent Subject Matter Eligibility guidance, independent claim 1 is not
directed to a judicial exception, but instead recites patent eligible subject
matter.” Appeal Br 11. As discussed above, we are not persuaded that, under
Step 2A, the claims are patent-eligible and Appellant has waived any
separate argument it might have advanced under Step 2B by not presenting
such argument in its Appeal Brief. See 37 C.F.R. § 41.37(c)(1)(iv).
For the foregoing reasons, we affirm the rejection of claim 1 as
patent-ineligible. Claims 2–15 are not argued separately and fall with claim
1.
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OBVIOUSNESS REJECTIONS
Examiner found Duhamel describes a system for improving patient
compliance with using a therapeutic device, the same purpose which is
claimed. Final Act. 11. Examiner found that Duhamel describes a data
interface ([1] of claim 1), target unit ([2] of claim 1), gamification unit ([3]
of claim 1), and feedback unit ([4] of claim 1]) as recited in claim 1. Final
Act. 12.
Examiner found, however, that Duhamel does not explicitly disclose
providing feedback during the patient’s use of the device about the time
remaining to reach the target usage ([3] of claim 1). To meet this deficiency,
the Examiner further cited Partovi for teaching informing a patient of the
time periods to comply with device usage and Soni for teaching a unit which
informs a patient of compliance during the time in which the device is
actually being used by the patient. Final Act. 12–13. The Examiner found it
would have been obvious “to one of ordinary skill in the art of healthcare at
the time of filing” to modify Duhamel to include feedback information
during the time period when the device is being used to continue to motivate
the patient to comply with treatment and to inform the patient of the time
remaining to reach the target. Final Act. 13.
Appellant argues that the cited publications do not describe the
gamification unit of limitation [3] of the claim. Appeal Br. 12. Appellant
also identifies alleged deficiencies in the cited publications with respect to
the type of feedback information they disclose as compared to that required
by claim 1. Id. at 12–14. Appellant also states that the Final Rejection “fails
to provide a clearly articulated reasoning with a rational underpinning
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regarding why the claimed invention would have been obvious to one having
ordinary skill in the art.” Id. at 15.
Appellant does not provide persuasive evidence that the Examiner
erred in rejecting the claims.
As found by Examiner, Duhamel describes determining whether a
patient is complying with the use of an oral appliance for the treatment of
sleep apnea.3 The system in Duhamel “is able to calculate the time the
appliance was inserted into the mouth and the time it was removed . . . to
verify adherence to a compliance standard.” Duhamel ¶ 34. Appellant states
that Duhamel does not provide feedback to the patient regarding this time
period. Appeal Br. 13. However, Examiner relied on Partovi and Soni for
providing feedback to the patient during the usage of the device as required
by limitations [3b]–[3d] of claim 1.
Partovi describes disease management systems to improve a patient’s
compliance with a treatment plans. Partovi ¶¶ 3, 5. Partovi describes
“monitoring technologies to keep track of compliance through notification to
the patient.” Id. ¶ 88. Partovi therefore describes providing feedback to a
patient on whether the patient is complying with a prescribed treatment.
Partovi also describes keeping track of “time frame goals” (Id. ¶ 113),
reasonably suggesting, as found by the Examiner, the claim 1 limitation of
“[3] determining an individual performance indicator based on a difference

3 “This application relates to treatment of obstructive sleep apnea (OSA)
using oral appliance therapy (OAT). More particularly, this application is
directed to monitoring of compliance with OAT-based treatment for OSA by
using a sensor embedded in the oral appliance to detect remotely if the
appliance has been used and providing access to compliance data to
authorized users via a computer network.” Duhamel ¶ 1.
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between the at least one device parameter value and the at least one
individual target.”
While Partovi, as acknowledged by Appellant, “only alerts, after the
fact, that the patient was non-compliant during the specified time” (Appeal
Br. 13), the Examiner recognized this deficiency and cited Soni for
describing alerting a patient about compliance during therapy (Final Action
12–13). Appellant complains of other deficiencies in Partovi with respect to
limitations [3a]–[3d] of the claim (Appeal Br. 13–14), but the Examiner
cited Soni for these claim limitations, and Duhamel and Partovi as providing
motivation to combine the publications to arrive at the claimed subject
matter.
Appellant argues that Soni does not describe [3d] “an assessment of
the first patient’s perspective of reaching the at least one individual target by
an end of the time period associated with the at least one individual target.”
Appeal Br. 14. We do not agree.
Soni teaches that a patient’s “progress” during a medical procedure
can be monitored by the patient:
Additionally, during the collection procedure execution, the
display 106 of the device 24 can provide a status indicator 604
(FIGS. 19E) which indicates how far along the patient 12 is and
how far along he/she has to go in completing the collection
procedure 70 that is running on the device.
. . .
In other embodiments, progress can be measured by: indicating
the percent (%) attainment of a goal, such as a titration of a
medication till a diagnostic measurement range is attained; by
showing a comparison to a population of many such patient
titrations; and via a characteristic "Rate of Change of
Medication" to "Remaining Duration" function to predict the
remaining duration for the current user.
. . .
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For example, collection procedures providing fixed schedule
assessments, such progress can be measured either by the
amount of time that remains, or by the amount of events that
remain. For example, such progress could be shown by a simple
countdown e.g., as a graphically displayed message "You have
x days, and y measurements until completion," provided on
display 106.
Soni ¶ 238 (emphasis added).
These disclosures show that Soni clearly describes measuring the
“progress of the first patient toward reaching the at least one individual
target” ([3a] of claim 1) and expressly teaches [3c] of claim 1 of “an amount
of time remaining in the time period associated with the at least one
individual target.”
Appellant argues that “[s]howing that a patient is, for example, 50%
through a collection procedure, is not an assessment of the patient's
perspective of reaching the at least one individual target by an end of the
time period associated with the at least one individual target.” Appeal Br. 14.
We do not agree. As shown above, Soni describes informing the
patient of “[the] amount of time remain[s],” meeting the corresponding
limitation [3c].
Appellant expressly admits that the claimed “perspective of reaching
the at least one individual target by an end of the time period associated with
the at least one individual target” (Reply Br. 4) is informing the patient of
the time remaining for treatment:
To clarify, if a patient’s individual target of therapeutic device
usage is 5 hours in a 24 hour period, and the patient still needs 2
hours of usage to meet that target, the patient’s perspective of
meeting the individual target within the period of time is less if
the patient has 3 hours remaining in the period of time.
Id. at 5 (emphasis omitted); see also Spec. 18.
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Soni describes measuring progress by an amount of time that remains,
and the disclosure of time remaining, is by Appellant’s admission a teaching
of [3d] “perspective of reaching the at least one individual target by an end
of the time period associated with the at least one individual target.” Id. at 4.
Appellant therefore did not establish that Examiner erred in finding that Soni
meets the claimed limitations.
Appellant also asserts that Examiner’s reasoning to combine the cited
publications is “conclusory” and lacking “articulated reasoning with a
rational underpinning regarding why the claimed invention would have been
obvious to one having ordinary skill in the art.” Appeal Br. 15.
We do not agree. Examiner found that it would have been obvious “to
modify Duhamel to include time periods [as described in Partovi] associated
with individual targets and feedback information . . . in order to motivate
[the patient] to continue with their treatment.’” Final Act. 13 (alteration in
original) (citation omitted). Examiner further stated the motivation to apply
Partovi and Soni to Duhamel is “helping a patient achieve goals,” which all
three cited publications describe. Final Act. 25. These statements are
sufficient to provide a reason to modify Duhamel to have arrived at the
subject matter of claim 1.
Accordingly, the rejection of claim 1 as obvious in view of Duhamel,
Partovi, and Soni is affirmed. Appellant does not rely on any additional
arguments for the remaining claims rejected over Duhamel, Partovi, and
Soni, or the remaining obviousness rejections. Claims 2–15 therefore fall
with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).

Appeal 2020-005659
Application 15/035,617

19
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–15 101 Eligibility 1–15
1, 4, 5, 14,
15
103 Duhamel, Partovi,
Soni
1, 4, 5, 14,
15

2, 6–12 103 Duhamel, Partovi,
Soni, Mestas
2, 6–12
3 103 Duhamel, Partovi,
Soni, Mestas, Fox
3
13 103 Duhamel, Partovi,
Soni, Remmers
13
Overall
Outcome
1–15

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED