Navigating the post-Alice patent-eligibility landscape with graphical user interface (GUI) claims can be trying, particularly when fighting to maintain desirable breadth. As with all software-related claims, limitations must raise GUI claims (and other types of UI claims, for that matter) beyond fundamental designs and implementations, root the invention in computer technology, and provide a specific, innovative solution to a technological problem. In the past four years, the Federal Circuit has provided some guidance for GUI claims, perhaps most notable being the recent Core Wireless decision. In Core Wireless, the Court essentially stated that, to overcome the scrutiny of 35 U.S.C. § 101, a GUI claim should describe the specific functionality and/or layout of the GUI, and in addition, the patent's specification should describe in detail the advantages of the GUI functionality and/or layout over existing methods and designs.
Still, despite efforts to meet these requirements, practitioners can find themselves faced with rejections citing various cases such as Internet Patents Corp. v. Active Network, Inc., Intellectual Ventures I LLC v. Erie Indemnity Co., and Intellectual Ventures I LLC v. Capital One Bank (USA), in which higher-level GUI claims were deemed patent-ineligible. Even more dreaded is the oft-cited Electric Power Group Federal Circuit decision, used in § 101 rejections to characterize GUI claims to "collecting information, analyzing it, and displaying certain results of the collection and analysis."
Federal Circuit decisions are certainly helpful to consider in prosecuting GUI claims. The goal of this post, however, is to highlight a small handful of Patent Trial and Appeal Board (PTAB) appeal decisions from the past three months as examples of how the Board has been addressing GUI claims of late.
In May, for instance, the PTAB affirmed the patent-ineligibility of claims directed to a GUI display for use in locating buried or otherwise inaccessible "utility lines," such as pipes and other conduits, cables, transmitters, etc. by using sensors to detect electromagnetic signal emissions from buried or hidden objects. The patent application (U.S. Patent App. No. 13/189,844) noted that advances in inexpensive processing power and complex software systems have made it possible to improve locator performance using a GUI to present data obtained from such sensors, such as a direction of current flow. The application went on to note that there still exist unresolved problems in the field, and the claimed GUI was one of a handful of proposed solutions. For example, the application described the claimed GUI as incorporating "intuitive" displays that more accurately display representations of signal quality to a user so that no confusion exists as to whether sensor data indicates that a utility line has been found. However, claim 1, shown as follows, did not appear to sufficiently convey any alleged improvement to GUI display or to the determination of the displayed information.
1. A graphical user interface (GUI) display method in a portable locator system for locating a utility line coupled to a phase-encoded modulated electromagnetic (EM) reference signal, the method comprising the steps of:
measuring, at the locator system, a three dimensional magnetic field generated at least in part based on the phase-encoded modulated EM reference signal;
determining a current flow based on the measured magnetic field;
determining a direction of the current flow based on the phase-encoding of the modulated EM reference signal; and
displaying, on the GUI, a representation of the direction of the current flow.
In rejecting this claim, the Examiner deemed the claim to be directed to an abstract idea of an algorithm for measuring and determining a direction of current flow, and cited both Diamond v. Diehr and Electric Power Group. And with regard to Electric Power Group, the Board equated the "measuring" step to data gathering, equated the middle two steps as processing gathered data, and deemed the display of current flow direction to be an insufficient post-solution activity. The Appellants' attempt at distinguishing over Electric Power Group stated that the claims "have nothing to do with" measuring current direction and instead provide an improved process for using current direction to help find information about buried utilities and for processing signals emitted from the utility. The Appellants further asserted that the claims use this alleged improved process to in turn improve the technology of providing a visual representation of detected buried utilities. Still, the Examiner and the Board did not waver on step one of Alice. In addition, the Board found no additional features sufficient for elevating the claim to the realm of patent-eligibility. (The Board also sustained a § 102 rejection of claim 1.)
In June, the PTAB also affirmed the patent-ineligibility of claims directed to a GUI that allows medical personnel to document medical procedures and automatically generate billing information for the procedures. The patent application (U.S. Patent App. No. 13/103,129) aimed to reduce time spent summarizing procedure details and generating bills, as well as to reduce errors found in procedure summaries and resulting bills, such as errors that occur when doctors forget or insufficiently document acts performed during procedures. Claim 1 is provided as a representative example.
1. A non-transitory computer-readable medium having stored thereon sequences of instructions which, when executed by at least one processor, cause the at least one processor to:
output a graphical user interface (GUI), the GUI including a visual representation of at least a portion of a human body and a text input area;
receive input from a user via the GUI, the input selecting portions of the visual representation and identifying a sequence of medical procedures that were performed on a patient with respect to the selected portions;
highlight the selected portions on the visual representation, the highlighted portions providing a graphical representation of the sequence of medical procedures that were performed on the patient;
automatically generate billing codes corresponding to the medical procedures that were performed based on the input received via the GUI;
automatically generate text, based on input received via the GUI, identifying at least some of the medical procedures that were performed;
display the billing codes and the generated text on the GUI;
provide, via the GUI, a pop-up or dialog window in response to input corresponding to at least some of the medical procedures that were performed;
receive, from the user, information via the pop-up or dialog window; and
display at least some of the information provided via the pop-up or dialog window in the text input area of the GUI,
wherein the sequence of medical procedures corresponds to surgery performed on the patient and the visual representation displays a portion of a vascular system of the human body, and
wherein when highlighting the selected portions, the instructions cause the at least one processor to highlight a path in the displayed portion of the vascular system corresponding to portions of the vascular system in which the surgery was performed.
In rejecting claim 1, the Examiner stated that the claimed invention "merely encompasses the abstract ideas of comparing new and stored information and using rules to identify options; and/or using categories to organize, store and transmit information." The Appellants then argued that the claims were mischaracterized and that not all of the claim features were considered. In particular, that Appellants stated in their reply brief that:
Claim 1, however, recites a much more detailed set of features that provide a comprehensive solution to documenting medical procedures in a visual manner (e.g., by highlighting selected portions of the visual representation), while ensuring that needed information and text are provided (e.g., via input from the GUI and pop-up or dialog window), that text and billing codes are automatically generated for billing purposes, and that a highlighted path is displayed that corresponds to the portions of the vascular system in which the surgery was performed. Such features provide medical personnel with a comprehensive visual representation, along with text and billing codes.
But the Board concluded that the Examiner's characterization was proper because "different levels of abstraction" can be applied in an Alice step-one analysis. Unfortunately, the Appellants' arguments with regard to step two were relatively lacking, and the Board concluded that the Appellants did not identify or provide supporting explanation for additional elements that amount to significantly more than an abstract idea. Instead, the Appellants restated the above-noted improvements to the field of documenting and billing medical procedures, and then proceeded to unsuccessfully argue that the claimed features are not well understood, routine, and conventional because there was no prior art rejection of claim 1. The Board very quickly dismissed these arguments. Had the Appellants cited to the specification in step two and tied described advantages to particular claim limitations, they might have set themselves off on a better foot with the Board (and possibly with the Examiner), though it is difficult to say whether this would have been persuasive.
As an interesting point of comparison to the medical documenting/billing claim in the previous case, the Board also recently reversed a § 101 rejection of claims in the medical field (albeit arguably claims with more-detailed functionality). In particular, in U.S. Patent App. No. 14/271,719, the claims relate to a "GUI wizard" used to help human personnel audit and score medical documents that have undergone a process in which clinical contents of the documents, such as medical findings, diagnoses, and procedures, are "coded" (i.e., mapped to standardized alphanumeric nomenclature codes). The application describes that coding has traditionally been done manually, and that the auditing of coding results is heavily dependent on human skills and prone to human error. The claimed GUI method thus aims to make the auditing and scoring process less complex and reduce errors. Representative claim 37 is provided as follows:
37. A method of evaluating coded medical documents performed by a computer, the method comprising:
[1] providing, by a computer, a graphical user interface (GUI) wizard;
[2] receiving, by the computer via the GUI wizard, audit parameters for selecting a document universe and for calculating a sample size;
[3] calculating, by the computer, a sample size using the received audit parameters;
[4] selecting, by the computer, a document universe based on the received audit parameters;
[5] providing, by the computer via the GUI wizard, a plurality of medical documents coded by a coder and selected using the selected document universe and the calculated sample size;
[6] receiving, by the computer via the GUI wizard, a plurality of corrections by an auditor to the plurality of medical documents;
[7] recording, by the computer, the plurality of corrections to the coded medical documents to form a plurality of audited medical documents;
[8] determining, by the computer, a document score for each of the plurality of audited medical documents, each document score based on one or more document corrections provided by the auditor and weighted factors, wherein the weighted factors comprise predefined weights assigned to diagnosis codes and finding codes of each of the plurality of audited medical documents;
[9] determining, by the computer, a sample score for the plurality of audited medical documents based on the determined document scores;
[10] determining, by the computer, the acceptability of the sample score by periodically performing an empirical test to compare the sample score to system control limits; and
[11] displaying, by the computer via the GUI, an X-bar chart analysis comprising the sample score, an upper control limit, a lower control limit, and a previously determined sample score of audited medical documents coded by the coder.
In rejecting this claim, the Examiner argued that the claims were directed to an abstract idea of "determining the acceptability of a determined sample score that is based on determined document scores of audited medical documents." In response, the Appellants contended that the claims recite specific UI elements (e.g., a GUI wizard and an X-bar chart analysis) that define a specific user experience. Analogizing to the claims in Core Wireless, the Board sided with the Appellants, finding the claim to be directed to an improved GUI wizard and specifically identifying steps [2], [5], [6], and [11] of the claim as sufficiently inventive features. Notably, the Board emphasized how these and other claimed steps are described in detail in the specification along with details as to how the steps, as well as the GUI layout, help a user audit coded medical documents. The Board stopped its analysis after step one, concluded that the claims are patent eligible, and reversed the Examiner's rejection.
Ex parte Ahn (PTAB 2018)
Panel: Administrative Patent Judges Astorino, Meyers, and Silverman
Decision on Appeal by Administrative Patent Judge Silverman
Ex parte Olsson (PTAB 2018)
Panel: Administrative Patent Judges Colaianni, Housel, and McManus
Decision on Appeal by Administrative Patent Judge Housel
Ex parte Heinze (PTAB 2018)
Panel: Administrative Patent Judges Lorin, Medlock, and Bayat
Decision on Appeal by Administrative Patent Judge Lorin
