US patent applicants continue to face challenges with the application of Section 101 abstract idea rejections. Section 101 rejections continue to be not only prevalent, but difficult to overcome and with a relatively low chance of success on appeal. Whether that is due to patent applicants and the patent bar attempted to push the boundary, or the over-zealous application by the USPTO, is left for another day.
What matters from a practical point of view is understanding what factors and arguments can lead to a successful application, including a successful appeal if necessary. Today we review a user interface invention by Roche. The application (13/912,318) relates to the review of biological monitoring data such as continuous glucose monitoring (CGM), which provides glucose data related to the amount of glucose contained within the blood of a person with diabetes (PwDs). Claim 1 on appeal is presented below (where the only rejection was under 101).
1. A collection system for automatically displaying patterns in glucose data of one or more patients, the collection system comprising:
one or more processors;
an electronic display communicatively coupled to the one or more processors; and
machine readable instructions that are executed by the one or more processors, wherein the machine readable instructions cause the one or more processors to:
receive a glucose data signal indicative of ambulatory glucose levels sampled over multiple days and determined from a body fluid of the one or more patients via a glucose meter communicatively coupled to the one or more processors;
divide the glucose data signal into segments of interest;
transform, automatically, each of the segments of interest into a set of features according to a mathematical algorithm;
append discrete data to the set of features;
cluster, automatically, the segments of interest into groups of clustered segments according to a clustering algorithm, wherein each group of clustered segments is associated with an importance ranking based on a number of segments in a respective group, wherein the segments of interest are grouped in the groups of clustered segments based at least in part upon the set of features and a cluster center is associated with one of the groups of clustered segments, wherein each cluster center corresponds to a mean of one of the groups of clustered segments and includes a width indicative of the importance ranking and corresponding number of segments in the respective group, and wherein each cluster center width is proportional to the corresponding number of segments in the respective group; and
present, automatically, the cluster center and corresponding width of each one of the groups of clustered segments on the electronic display based on the importance ranking corresponding to the number of segments in the respective group of each cluster center, wherein displayed cluster centers identify information regarding patterns, sub- patterns or behaviors in the glucose data of the one or more patients that otherwise is averaged out or obscured when the ambulatory glucose levels sampled over multiple days are combined into an ambulatory glucose profile or a modal day plot.
The specification included some specific description about the difficult in identifying patterns within the glucose data in terms of altering patient behavior or patient therapy. However, it was the health care providers and patients that needed to identify patterns in the glucose data by sorting based upon the contextual data, but such context was generally unavailable. As such, systems and methods for automatically displaying patterns in glucose data were disclosed as addressing this issue.
Already it is clear that Section 101 is likely going to come into play with this application. Electric Power and the mere processing and generating of data is just one example of what comes to mind. Indeed, the examiner here specifically relied on this case.
The Applicant, however, presented an overall approach that utilized detailed explanations and examples of the user interface display in the specification, along with citation to examples (example 37) in the USPTO guidelines and relevant case law, including Core Wireless. For example, the specification explained that the display summarizes the collected biological data by only displaying the cluster centers, which enhances the patterns that exist within the biological data. Moreover, the specification explained that the displayed width of the cluster centers is proportional to the number of segments included in the cluster, which enhances consistent behaviors with relatively thick lines and outlier behaviors with relatively thin lines.
Interestingly, this was the applicant’s second appeal on 101 issues - the first was affirmed. In response, the applicant added the limitations relating to the importance ranking of cluster segments and the display of cluster centers with a width indicative of that importance ranking, referred to by the PTAB as “importance ranking/width” limitations.
The PTAB maintained that the claims still recited an abstract idea, but found that the importance ranking/width limitations constitute additional elements that integrate the judicial exceptions into a practical application (Guidance Step 2A, prong 2). Specifically, the PTAB noted the detailed explanation in the specification regarding the unique specialized display of the data so as to make patterns more recognizable to the user, and how this tied directly to specific claim elements about the way the display. Further, the PTAB agreed that Core Wireless (and example 37) were directly applicable:
We agree with Appellant that the claims at issue in Core Wireless are analogous to the claims at issue here. … Similarly, claim 1 here recites more than the generic display of data because it requires the data be summarized and presented in a particular way, i.e., as cluster centers corresponding to the mean of the groups of clustered segments along with a width indicative of their importance ranking. We also agree with Appellant that its amended claims are comparable to the patent eligible claim 1 in Example 37. …While determining the amount of time an icon is used is an abstract mental process, Example 37 explains that the additional elements “of automatically displaying icons to the user based on usage” provide “a specific improvement over prior systems resulting in an improved user interface.” Id. The same is true of the importance ranking/width limitations in Appellant’s claims here.
The Examiner’s assertions to the contrary are unpersuasive on the present record. While the Examiner passingly acknowledges Appellant’s amendment adding the “use of an importance ranking,” the Examiner does not address the requirement that the cluster centers be automatically displayed with a width corresponding to their importance ranking, much less Appellant’s argument that this affects a specific improvement to the user display. See Ans. 10. The comparison the Examiner draws between Appellant’s claims and claim 1 of Example 46 is inapt for the same reason. See id. at 12–13. Claim 1 of Example 46 recites the generic display of the result of the abstract mental process. Example 46, 35. Here, however, the importance ranking/width limitations recite the display of a particular set of data in a particular way and therefore are more akin to the patent eligible claims in Core Wireless and Example 37.
So, when drafting and prosecuting cases that relate to the display of information, this case illustrates the type of helpful details to include in the specification and claims, as well as additional explanation as to how such details improve the effectiveness of the user interface. While the path may still be difficult, as it was here for Roche, there can be light at the end of the tunnel.