BGC PARTNERS, INC.

Patent Trials and Appeals Board

Jun 11, 2021

2021000867 (P.T.A.B. Jun. 11, 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.
15/870,178 01/12/2018 Howard W. Lutnick 04-1109WOUS-C1 9072
63710 7590 06/11/2021
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
KHATTAR, RAJESH
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
06/11/2021 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):
lkorovich@cantor.com
mcatarino@cgolaw.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte HOWARD W. LUTNICK, KEVIN M. FOLEY,
JOSEPH NOVIELLO, and MICHAEL SWEETING
__________________

Appeal 2021-000867
Application 15/870,178
Technology Center 3600
____________________

Before JAMES P. CALVE, NINA L. MEDLOCK, and AMEE A. SHAH,
Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the decision
of the Examiner to reject claims 30–49, which are all of the pending claims.2
See Appeal Br. 3. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies BGC PARTNERS, INC. as the real party in interest. Appeal Br. 3.
2 Claims 1–29 are cancelled. See Appeal Br. 20 (Claims App.).
Appeal 2021-000867
Application 15/870,178

2
CLAIMED SUBJECT MATTER
The claims relate to displaying bid and ask prices with an indication
of the inside market that shifts to remain near the central display location.
Spec. ¶¶ 12–17. Claims 30, 48, and 49 are independent. Claim 30 recites:
30 A method comprising:
controlling, by at least one processor of a computer:
displaying, over a communication network, on a display
of a remote computing device, a plurality of bid prices along a
first axis and a plurality of ask prices along a second axis, and
an indication of an inside market among the bid and ask prices
in a central display location along the first and second axes;
in response to the inside market changing from a first of
the plurality of bid prices and a first of the plurality of ask
prices to at least one of a second of the plurality of bid prices
and a second of the plurality of ask prices, displaying, over the
communication network, on the display of the remote
computing device, the indication of the inside market in a
second location along the first and second axes corresponding
to a display location of the at least one of the second of the
plurality of bid prices and the second of the plurality of ask
prices, the second location being different than the central
display location; and
automatically, in real time in response to the change to
the inside market, over the communication network, shifting at
least one of the plurality of bid prices along the first axis of the
display and the plurality of ask prices along the second axis of
the display, the shifting comprising:
displaying (1) the at least one of the second of the
plurality of bid prices and the second of the plurality of ask
prices, and (2) the indication of the inside market, at a third
location at least part of the way between the second location
and the central display location, the third location being
different than the second and central display locations; and
displaying (1) the at least one of the second of the
plurality of bid prices and the second of the plurality of ask
prices, and (2) the indication of the inside market, at the central
display location,
Appeal 2021-000867
Application 15/870,178

3
wherein the shifting of the at least one of the
plurality of bid prices and the plurality of ask prices
substantially continuously in real time maintains the display
location of the indication of the inside market at or near the
central display location.
REJECTIONS
Claims 30–49 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 30-49 are rejected for nonstatutory double patenting over
claims 1–65 of U.S. Patent No. 9,870,590 B2 (iss. Jan. 16, 2018) to Lutnick.
ANALYSIS
Eligibility of Claims 30–49
Appellant argues the claims as a group. Appeal Br. 8–18. We select
claim 30 as representative. See 37 C.F.R. § 41.37(c)(1)(iv) (2019).
The Examiner analyzes the limitations of claim 30 and determines that
they recite the abstract idea of displaying market information as a method of
organizing human activity and a fundamental economic principle or practice.
Final Act. 2–3. The Examiner determines that this judicial exception is not
integrated into a practical application because the additional limitations of
one processor of a computer, a communication network, and a display of a
computing device are recited at high levels of generality to comprise generic
computer components that do nothing more than implement the abstract idea
without applying a meaningful limitation on it. Id. at 3. The Examiner also
determines that these additional elements, considered individually and as an
ordered combination, do not amount to significantly more than the exception
but apply the exception in a generic computer environment by performing
routine, well-understood, and conventional functions. Id. at 4; Ans. 4.
Appeal 2021-000867
Application 15/870,178

4
Principles of Law
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.
35 U.S.C. § 101. Laws of nature, natural phenomena, and abstract ideas are
not patentable. See Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014).
To distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications, we first
determine whether the claims are directed to a patent-ineligible concept. Id.
at 217. If they are, we consider the claim elements, individually and as an
ordered combination, to determine if any additional elements provide an
inventive concept sufficient to ensure that the claims in practice amount to
significantly more than a patent on the ineligible concept. Id. at 217–18.
The USPTO has issued guidance about this framework. 2019 Revised
Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Revised Guidance”). To determine if a claim is “directed to” an abstract
idea, we evaluate whether the claim recites: (1) any judicial exceptions,
including certain groupings of abstract ideas listed in the Revised Guidance
(i.e., mathematical concepts, certain methods of organizing human activities
such as a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a practical
application.3 Id. at 52–55.

3 “A claim that integrates a judicial exception into a practical application
will apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Revised
Guidance, 84 Fed. Reg. at 54.
Appeal 2021-000867
Application 15/870,178

5
If a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, we consider whether the claim
(3) provides to an inventive concept such as by adding a limitation beyond a
judicial exception that is not “well-understood, routine, conventional” in the
field or (4) appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. Revised Guidance, 84 Fed. Reg. at 56.
Alice Step One
Revised Guidance Step 2A, Prong One:
Does Claim 30 Recite a Judicial Exception?
We agree with the Examiner that claim 30 recites certain methods of
organizing human activity and a fundamental economic practice. Final Act.
2–3. It also recites mental processes. Revised Guidance, 84 Fed. Reg. at 52.
Claim 30 recites a method of displaying bid and ask prices so traders
may buy and sell financial items or goods. Appeal Br. 20–21 (Claims App.);
Spec. ¶¶ 2–4. The method displays bid/ask prices with associated quantities
so traders can place orders accurately. Spec. ¶¶ 5–7. Placing orders based
on displayed market information is a fundamental economic practice. See
Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1092 (Fed. Cir. 2019)
(“The fact that the claims add a degree of particularity as to how an order is
placed in this case does not impact our analysis at step one.”).
The step of displaying, over a communication network, a plurality of
bid and ask prices along first and second axes with an indication of an inside
market in a central display location along the axes recites this abstract idea.
Appeal Br. 20 (Claims App.); see Trading Techs., 921 F.3d at 1093 (“As a
general rule, ‘the collection, organization, and display of two sets of
information on a generic display device is abstract.’”) (citation omitted).
Appeal 2021-000867
Application 15/870,178

6
Displaying the indication of the inside market in a second location and
shifting the bid and ask prices along their axes toward the center to maintain
the inside market indication at or near the central display location recites the
same abstract idea. Appellant’s Figures 2B and 2E illustrate these steps.

Figure 2B above shows inside market shifts from indication 207B to
indication 206B at bid-ask prices of 17-18. Then, this indication is shifted
back to the center at indication 206E in Figure 2E above. Spec. ¶¶ 46–49.
Appeal 2021-000867
Application 15/870,178

7
Recited at such a high level of generality, without technical details,
displaying bid and ask prices on axes with an indication of an inside market
that is moved toward a central display location recites the same abstract idea
and also can be performed as a mental process. See Elec. Power Grp., LLC
v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (“But merely selecting
information, by content or source, for collection, analysis, and display does
nothing significant to differentiate a process from ordinary mental processes,
whose implicit exclusion from § 101 undergirds the information-based
category of abstract ideas.”); see also Trading Techs. Int’l, Inc. v. IBG LLC,
921 F.3d 1378, 1384 (Fed. Cir. 2019) (calculating and displaying profit and
loss values on an axis to identify long and short positions and computing
values merely automates manual processes using generic computers).
Thus, we determine that claim 30 recites the abstract idea identified
above. Appellant does not dispute the determination that claim 30 recites an
abstract idea under Prong One. See Appeal Br. 8–15.
Alice Step One
Revised Guidance Step 2A, Prong Two:
Is There an Integration into a Practical Application?
We next consider whether claim 30 recites additional elements that
integrate the abstract idea into a practical application. Revised Guidance,
84 Fed. Reg. at 54. We agree with the Examiner that claim 30 does not
recite any additional elements that improve a computer or other technology
or implement the abstract idea in conjunction with a particular machine that
is integral to the claim. Nor does claim 30 include any additional elements
that transform or reduce a particular article to a different state or thing or
apply the abstract idea in a meaningful way beyond merely linking it to a
particular technological environment. Id. at 55; see Final Act. 3; Ans. 3–4.
Appeal 2021-000867
Application 15/870,178

8
The Examiner correctly determines that the processor, communication
network, and display are recited at high levels of generality as generic
components. Final Act. 3. Workstations may be personal computers, laptop
computers, mainframe computers, dumb terminals, data displays, personal
digital assistants, pagers, and portable telephones. Spec. ¶ 32. Workstation
110 may include processor 111, display 112, input device 113, and memory
114. Id. ¶ 33. Processor 111 may use the workstation program to receive
trade information for the items being traded by users of the system. Id. The
communication network 103 preferably includes the Internet, but it may be
an intranet, wide-area network, local-area network, wireless network, frame
relay network, virtual private network, frame relay network, and any other
suitable network. Id. ¶ 31. Communication links may be any links suitable
for communicating data between workstations and a server such as network
links, dial-up links, wireless links, and hard-wired links. Id. These
descriptions confirm that these elements are generic components used to
perform generic functions of the abstract idea identified under Prong One.
Because the additional elements are generic components, they do not
improve computers, networks, displays, or other technology. Nor do they
represent a particular machine that is integral to the claims. See Alice, 573
U.S. at 223 (merely reciting a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention and stating an abstract
idea while adding the words “apply it” is not enough for patent eligibility);
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can. (U.S.), 687 F.3d 1266,
1278 (Fed. Cir. 2012) (“To salvage an otherwise patent-ineligible process, a
computer must be integral to the claimed invention, facilitating the process
in a way that a person making calculations or computations could not.”).
Appeal 2021-000867
Application 15/870,178

9
Communicating over a network for device interaction is a building
block of the modern economy rather than an improvement to computers or
other technology as claimed. See ChargePoint, Inc. v. SemaConnect, Inc.,
920 F.3d 759, 773 (Fed. Cir. 2019).
Appellant argues that automatically displaying an indication of an
inside market in real time in response to changes in the inside market, over
the communication network, shifting the bid and ask prices along their axes,
and doing so substantially continuously in real time to maintain the display
location at or near the central display location, allows a computer to perform
a function not previously performable by a computer and implemented using
a particular machine. Appeal Br. 8–13. Even if they do, these features are
recited as the abstract idea identified in Prong One without technical details.
As our reviewing court held in a similar situation,
The claims are focused on providing information to traders in a
way that helps them process information more quickly . . . not
on improving computers or technology. The claims require
displaying P&L values along an axis, displaying an indicator
representing market information at a location on the axis, and
moving the indicator to a second location. The “tool for
presentation” here . . . is simply a generic computer. . . . While
the fact that an invention is run on a generic computer does not,
by itself, “doom the claims,” . . . the claims here fail because
arranging information along an axis does not improve the
functioning of the computer, make it operate more efficiently,
or solve any technological problem. Like Electric Power, the
purported advance “is a process of gathering and analyzing
information of a specified content, then displaying the results,
and not any particular assertedly inventive technology for
performing those functions.”
Trading Techs, 921 F.3d at 1384–85 (citations omitted). The display and
trading interfaces are described as generic components. Spec. ¶¶ 33, 36–44.
Appeal 2021-000867
Application 15/870,178

10
The features cited by Appellant to integrate the abstract idea merely
automate a process that otherwise can be performed as a mental process in
the human mind or by a person with pen and paper. Such implementation
does not improve computer technology. See Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017) (“Our prior cases
have made clear that mere automation of manual processes using generic
computers does not constitute a patentable improvement in computer
technology. In those cases, ‘the focus of the claims is not on such an
improvement in computers as tools, but on certain independently abstract
ideas that use computers as tools.’”) (citation omitted); see also Customedia
Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020)
(generic speed and efficiency improvements inherent in applying the use of a
computer to any task, at most, improves the abstract idea using the computer
as a tool but does not improve the functioning of the computer itself).
So too, continuous, dynamic display and automatic updating in real
time of bid and ask prices with the associated inside market, as claimed, do
not comprise a particular machine that is integral to the claim or improve the
functioning of computers or communication networks. Electric Power held
that claims to gathering, analyzing, and displaying events and measurements
with dynamic rates of change in real time using generic technology were not
patent-eligible. Elec. Power, 830 F.3d at 1355 (“That is so even as to the
claim requirement of ‘displaying concurrent visualization’ of two or more
types of information . . . even if understood to require time-synchronized
display: nothing in the patent contains any suggestion that the displays
needed for that purpose are anything but readily available.”); see Ans. 3–4.
Here, claim 30 recites a generic computer display that displays data.
Appeal 2021-000867
Application 15/870,178

11
Continuously recalculating and displaying the inside market (i.e., the
highest bid price with the lowest ask price) at the center of a generic display,
as claimed, does not recite a particular display that is integral to the claims.
Nor does it improve the operation of computers or other technology. Even if
it displays information in a way that may be easier to understand by traders,
the display does not integrate the abstract idea into a practical application.
As the court held in Trading Technologies in response to similar arguments,
The claims of the ’999 patent do not improve the functioning of
the computer, make it operate more efficiently, or solve any
technological problem. Instead, they recite a purportedly new
arrangement of generic information that assists traders in
processing information more quickly. . . . We conclude that the
claims are directed to the abstract idea of graphing bids and
offers to assist a trader to make an order.
See Trading Techs., 921 F.3d at 1093.
The inside market indication is claimed generically without technical
details. The indication is used to highlight the inside market and may be a
box surrounding the cells of the inside market, or the cells may be colored,
highlighted, underlined, italicized, bolded, or in a unique font or font size.
Spec. ¶¶ 42, 44. This description confirms that the inside market indication
is a generic indicia that does not improve computers or display technology.
DDR Holdings illustrates why claim 30 here is not patent eligible.
DDR claimed a new web server configuration. If a website visitor clicked
on an advertisement for a merchant’s product on a host’s website, the visitor
was directed to a hybrid web page that combined the look and feel elements
of the host website with product information of the merchant’s website on a
third party outsource provider’s server. DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245, 1257–58 (Fed. Cir. 2014); cf. Appeal Br. 14.
Appeal 2021-000867
Application 15/870,178

12
Here, claim 30 recites a generic display that displays data in real time
as displays did in Electric Power and Trading Technologies without making
the claims patent eligible. Generic speed and efficiency improvements from
using a generic computer and display do not root the claims in computer or
network technology. See Customedia, 951 F.3d at 1365; cf. Appeal Br. 14.
In Core Wireless, an application summary window was accessible
from the menu. It listed a limited set of data that was selectable to launch a
respective application to enable the data to be seen in an application, and a
summary window was displayed while the applications were in unlaunched
states. Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356,
1362–63 (Fed. Cir. 2018). Here, claim 30 displays data in a way that helps
traders process it more quickly without improving computers, displays, or
technology. See Trading Techs., 921 F.3d at 1384; cf. Appeal Br. 14–15.
Accordingly, we determine claim 30 lacks any additional element that
integrates the judicial exception into a practical application.
Alice, Step Two and Revised Guidance Step 2B:
Does Claim 30 Include an Inventive Concept?
We next consider whether claim 30 recites any additional element,
individually or as an ordered combination, to provide an inventive concept.
Alice, 573 U.S. at 217–18. This step is satisfied when the claim limitations
involve more than well-understood, routine, and conventional activities
known in the industry. See Berkheimer v. HP Inc., 881 F.3d 1360, 1367
(Fed. Cir. 2018); Revised Guidance, 84 Fed. Reg. at 56 (the second step of
the Alice analysis considers if a claim adds a specific limitation beyond the
recited judicial exception that also is not “well-understood, routine,
conventional” activity in the field).
Appeal 2021-000867
Application 15/870,178

13
Individually, the limitations of claim 30 recite generic computer
components and the abstract idea identified under Prong One. Without the
generic computer limitations, nothing remains in the claim but the abstract
idea of certain methods of organizing human activity and mental processes.
See Bancorp, 687 F.3d at 1280. However, “a claimed invention’s use of the
ineligible concept to which it is directed cannot supply the inventive concept
that renders the invention ‘significantly more’ than that ineligible concept.”
BSG Tech LLC v. Buyseasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018).
We agree with the Examiner that the computer performs routine, well-
understood, and conventional functions of processing and displaying data.
Ans. 4 (citing MPEP § 2106.05(d)(II)); Final Act. 4. The citation to MPEP
§ 2106.05(d)(II) satisfies the Berkheimer Memo. See Appeal Br. 16–17.
As an ordered combination, claim 30 recites no more than when the
limitations are considered individually. BSG, 899 F.3d at 1290–91 (“If a
claim’s only ‘inventive concept’ is the application of an abstract idea using
conventional and well-understood techniques, the claim has not been
transformed into a patent-eligible application of an abstract idea.”); Elec.
Power, 830 F.3d at 1355 (the use of off-the-shelf, conventional computer,
network, and display technology to gather, send, and present desired
information including concurrent visualization of two or more types of
information, even time-synchronized, did not provide an inventive concept);
see also Trading Techs., 921 F.3d at 1094 (rejecting a patentee’s argument
that the claims improved computer functionality by improving intuitiveness
and efficiency of prior GUI tools where the specification made clear that the
invention only helped traders to process information more quickly without
improving computer functionality, and thus lacked an inventive concept).
Appeal 2021-000867
Application 15/870,178

14
Displaying market information to include moving an indicator along
bid and ask axes is well-understood, routine, conventional activity that does
not add significantly more to the abstract idea. See Trading Techs., 921 F.3d
at 1093. Thus, we sustain the rejection of claim 30 and claims 31–49, which
fall with claim 30.
Non-Statutory Double Patenting
The Examiner rejects claims 30–49 for nonstatutory, obviousness-type
double patenting over claims 1–65 of U.S. Patent No. 9,870,590 B2 issued
to Lutnick. Final Act. 7–8. Appellant does not present argument for this
rejection. Appeal Br. 7–19. Thus, we summarily sustain this rejection.
CONCLUSION
In summary:
Claim(s)
Rejected
35
U.S.C. §
Reference(s)/
Basis
Affirmed Reversed
30–49 101 Eligibility 30–49
30–49 101 Nonstatutory
Double Patenting
Lutnick
30–49
Overall
Outcome
30–49
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED