Silence in the prior art is not sufficient to sustain a rejection on the grounds of anticipation without inherency, which requires more than the mere possibility or even probability that the feature at issue is contemplated.
Background / Facts: The application on appeal here from rejection at the PTO is directed to an electronic medical records (“EMR”) system that doctors may use to access patients’ medical records and enter diagnoses and corresponding treatment instructions after patient visits. It also allows patients to access their own records and receive the treatment instructions from their doctors electronically. To give patients access to and control over their own medical information, the claims recite two separate passwords: (1) a patient password that each patient may use to log in to the system to access individual medical information, including diagnoses and treatment instructions; and (2) a patient PIN that each patient can share with those doctors to whom the patient wishes to grant access to his or her information and records and from whom the patient wishes to receive instructions. The prior art discloses an electronic prescription management system that doctors can use to prescribe medications to patients, manage prescriptions, and communicate with pharmacies and patients. To ensure that personal information is protected, the prior art uses “patient record access codes” that can be generated by or provided to patients prior to a doctor’s appointment. Patients can then decide whether to share their codes with doctors or other third parties on a need-to-know basis.
Issue(s): Whether, as reasoned by the PTO, patient control of the “patient record access codes” necessarily requires that the patients have access to the system in order to create controls or restrictions for doctors to access patient records.
Holding(s): No. “Although [the prior art] discloses giving patients the ability to control who may access their information, it stops short of granting patients actual access to that information through the prescription system. The closest disclosure in this regard is the single reference to a ‘patient interface’ of the ‘patient-directed data access control software’ that runs in stations located in administrative or reception areas of health care facilities. … That discussion, however, is silent regarding who uses the patient interface or whether patients can use it to view their individual information. Indeed, the one use of the ‘patient interface’ that is described in [the prior art] is allowing the reading of data access rights off a patient’s data access control card, which does not require direct interaction between a patient and the system.”