BGC PARTNERS, INC.

Patent Trials and Appeals Board

Dec 16, 2021

2021002145 (P.T.A.B. Dec. 16, 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.
16/049,251 07/30/2018 Joel Weiss 03-1069-C3 9294
63710 7590 12/16/2021
CANTOR FITZGERALD, L.P.
INNOVATION DIVISION
110 EAST 59TH STREET
NEW YORK, NY 10022
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
12/16/2021 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):
Caitlyn.kelly@chareiter.com
gabriella.zisa@chareiter.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL WEISS and
TIMOTHY H. HEATON

Appeal 2021-002145
Application 16/049,251
Technology Center 3600

Before HUBERT C. LORIN, BRADLEY B. BAYAT, and
AMEE A. SHAH, Administrative Patent Judges.
LORIN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s non-final decision to reject claims 1–12.1 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(a). Appellant identifies BGC Partners, Inc. as the real party in
interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claimed subject matter relates “to the calculating and displaying
of commissions relating to the trading of financial instruments” (Spec.
para. 2).
Claim 1, reproduced below with emphasis added, is illustrative of the
claimed subject matter:
1. An apparatus comprising:
a processor configured to control:
presenting, over a communication network, at a display of
a first computing device, a user interface having an interactive
region divided into a plurality of subregions, in which each
subregion of the plurality of subregions is related to a specific
financial instrument type;
receiving, over the communication network, from the first
computing device, a selection through the interactive region
indicating a plurality of financial instruments making up a
multilegged transaction for a financial instrument type in a first
subregion of the plurality of subregions;
automatically responsive to receiving the selection,
computing in real time, based on real time financial data
received at the apparatus in real time over the communication
network from a remote computing device, a total commission to
trade in the multi-legged transaction at least a part of the order
with a counterparty customer; and
automatically populating the user interface with data
indicating the total commission; and
receiving, over the communication network, from the first
computing device, a second selection through the interactive
region in a second subregion of the plurality of subregions, in
which the second selection is selected while predetermined
indicia is being displayed at the second subregion;
automatically responsive to receiving the second
selection,
causing, over the communication network, at the display
of the first computing device, display of a pop-up interactive
region and automatically repositioning display of the
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predetermined indicia from at the second subregion to at another
position on the display different from the second subregion;
receiving, over the communication network, from the first
computing device, data representing an instruction to modify the
order in a manner that influences the commission on the trade;
and
computing an updated commission based on the
modification;
automatically populating, over the communication
network, at the first computing device, the user interface with the
updated commission based on the modification;
receiving, over the communication network, from the first
computing device, an instruction through the user interface to
submit the order with the updated commission; and
in response to receiving the instruction, submitting the
order for execution.
Appeal Br. 18 (Claims App.).
REJECTIONS
Claims 1–10 are rejected on the ground of nonstatutory double
patenting as being unpatentable over claims 1–31 of U.S. Patent No.
8,306,903 and claims 1–41 of U.S. Patent No. 7,707,097.
Claims 1–12 are rejected under 35 U.S.C. § 101 as being directed to
judicially-excepted subject matter.
OPINION
The rejection of claims 1–10 are rejected on the ground of nonstatutory
double patenting as being unpatentable over claims 1–31 of U.S. Patent
No. 8,306,903 and claims 1–41 of U.S. Patent No. 7,707,097.
This rejection is pending. See Final Act. 8–9. Appellant does not
appear to have responded to it. See generally Appeal Br. and Reply Br.
Accordingly, the rejection is summarily affirmed.
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The rejection of claims 1–12 under 35 U.S.C. § 101 as being directed
to judicially-excepted subject matter.
The Appellant argues claims 1–12 as a group. See Appeal Br. 6–17.
We select claim 1 as the representative claim for this group, and the
remaining claims 2–12 stand or fall with claim 1. See 37 C.F.R.
§ 41.37(c)(1)(iv) (2019).
Introduction
35 U.S.C. § 101 provides that “[w]hoever 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.”
In that regard, claim 1 covers a “machine” and is thus statutory
subject matter for which a patent may be obtained.2 This is not in dispute.
However, the 35 U.S.C. § 101 provision “contains an important
implicit exception: Laws of nature, natural phenomena, and abstract ideas
are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).
In that regard, notwithstanding claim 1 covers statutory subject
matter, the Examiner has raised a question of patent eligibility on the ground
that claim 1 is directed to an abstract idea.

2 This corresponds to Step 1 of the 2019 Revised 101 Guidance which
requires determining whether “the claim is to a statutory category.” 84 Fed.
Reg. at 53. See also id. at 53–54 (“consider[] whether the claimed subject
matter falls within the four statutory categories of patentable subject matter
identified by 35 U.S.C. 101.”).
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Alice identifies a two-step framework for determining whether
claimed subject matter is directed to an abstract idea. Alice, 573 U.S. at 217.
Alice step one — the “directed to” inquiry:
According to Alice step one, “[w]e must first determine whether the
claims at issue are directed to a patent-ineligible concept.” Alice, 573 U.S.
at 218 (emphasis added).
The Examiner determined that claim 1 is directed to “calculating
commissions relating to the trading of financial instruments” (Final Act. 2,
citing paras. 2–10 of the Specification) which falls into the 2019 Revised
101 Guidance’s organizing human activity grouping of abstract ideas (id.
at 6).
Appellant argues, inter alia, that the claimed subject matter is not
directed to an abstract idea but
directed to improvements in computer performance,
particularly by a processor controlling real time communication
among multiple computing devices (e.g., the apparatus, the
remote computing device and the first computing device), which
helps facilitate real time, high speed communication and
processing, without delay and with high reliability and accuracy,
of information associated with transactions between a user of the
first computing device and the processor of the apparatus (e.g., a
server).
Appeal Br. 9.
Accordingly, a dispute over whether claim 1 is directed to an abstract
idea is present. Specifically, is claim 1 directed to “calculating commissions
relating to the trading of financial instruments” (Final Act. 2) or a
technological improvement (Appeal Br. 9)?
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Claim Analysis3
We consider the claim as a whole giving it the broadest reasonable
construction as one of ordinary skill in the art would have interpreted it in
light of the Specification at the time of filing.4,5,6
Claim 1 is a system comprising a combination of a generic
“processor,” “communication network,” “first computing device” with a
“display,” “user interface” with an “interactive region,” and “remote
computing device” for performing 11 functions: “presenting,” “receiving,”
“computing,” “populating,” “receiving, “causing,” “receiving,”
"computing,” “populating,” “receiving,” and “submitting.”
The first function calls for “presenting” the “user interface” so that is
has “an interactive region divided into a plurality of subregions, in which

3 “[T]he important inquiry for a § 101 analysis is to look to the claim.”
Accenture Glob. Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336,
1345 (Fed. Cir. 2013). “In Bancorp Servs., L.L.C. v. Sun Life Assurance Co.
of Can., 687 F.3d 1266, 1273 (Fed. Cir. 2012), the court observed that
‘claim construction is not an inviolable prerequisite to a validity
determination under § 101.’ However, the threshold of § 101 must be
crossed; an event often dependent on the scope and meaning of the claims.”
Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1347–48
(Fed. Cir. 2015).
4 “In determining the eligibility of respondents’ claimed process for patent
protection under § 101, their claims must be considered as a whole.”
Diamond v. Diehr, 450 U.S. 175, 188 (1981).
5 “First, it is always important to look at the actual language of the claims. . .
. Second, in considering the roles played by individual limitations, it is
important to read the claims ‘in light of the specification.’” Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1378 (Fed. Cir.
2017) (J. Linn, dissenting in part and concurring in part) (citing Enfish, LLC
v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)), among others.
6 See 2019 Revised 101 Guidance, 84 Fed. Reg. at 52, footnote 14 (“If a
claim, under its broadest reasonable interpretation . . . .”).
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each subregion of the plurality of subregions is related to a specific financial
instrument type.” The claim provides no technical detail about how the
processor “present[s]” the “user interface” to have an interactive region as
claimed. In effect, this step recites “presenting” a result. i.e., a user interface
with an interactive region divided into a plurality of subregions each having
a certain first type of financial information (“related to a specific financial
instrument type”).
The second “receiving” function calls for receiving a first selection in
a first subregion of the interactive region indicating a second type of
financial information (“a plurality of financial instruments making up a
multilegged transaction for a financial instrument type in a first subregion of
the plurality of subregions”).
The third function is “computing” a third type of financial information
(“a total commission to trade in the multi-legged transaction at least a part of
the order with a counterparty customer”).
The fourth function is “populating” the user interface with said third
type of financial information. How the populating is accomplished is unsaid.
The fifth “receiving” function calls for receiving a second selection in
a second subregion of the interactive region while the second subregion
displays predetermined indicia.
The sixth function calls for “causing” a pop–up interactive region to
be displayed as well as repositioning display of the predetermined indicia
from the second subregion to another position on the display.
The seventh function is “receiving” a fourth type of financial
information (“data representing an instruction to modify the order in a
manner that influences the commission on the trade”).
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The eighth function is “computing” a fifth type of financial
information (“an updated commission based on” the fourth type of financial
information).
The ninth function is “populating” the user interface with said fifth
type of financial information. Again, the populating is not described in any
technical detail.
The tenth function is “receiving” via the “user interface” with a sixth
type of financial information (“an instruction … to submit the order with the
updated commission”).
Finally, the eleventh function is “submitting the order for execution.”
As for the “processor,” “communication network,” “first computing
device” with a “display,” “user interface” with an “interactive region,” and
”remote computing device”, the Specification describes them generically.
See, e.g., Spec., para. 33 (“any suitable server, processor, computer”).
Putting it together, the claimed subject matter is reasonably broadly
construed as a generic system for submitting an order for execution based on
selected financial information.
According to the Specification, an objective of the invention is “to
provide an electronic trading system and method for the trading of interest-
rate-related instruments that fully and clearly discloses the brokerage fees
charged to the customers.” Spec., para. 7.
Given the apparatus as claimed as reasonably broadly construed above
and in light of the Specification’s description of the objective of the
invention in the “trading” realm, we reasonably broadly construe claim 1 as
being directed to a system for submitting an order for execution based on
selected financial information.
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The Abstract Idea7
Above, where we reproduce claim 1, we identify in italics the
limitations that recite an abstract idea.8 Based on our claim analysis (above),
we determine that the identified limitations describe a system for submitting
an order for execution based on selected financial information. Submitting
an order in a trading environment is a commercial interaction. It falls within
the enumerated “[c]ertain methods of organizing human activity” grouping
of abstract ideas set forth in the 2019 Revised 101 Guidance.9 2019 Revised
101 Guidance, 84 Fed. Reg. at 52.

7 This corresponds to Step 2A of the 2019 Revised 101 Guidance. Step 2A
determines “whether a claim is ‘directed to’ a judicial exception,” such as an
abstract idea. Step 2A is a two prong inquiry.
8 This corresponds to Prong One (a) of Step 2A of the 2019 Revised 101
Guidance. “To determine whether a claim recites an abstract idea in Prong
One, examiners are now to: (a) Identify the specific limitation(s) in the
claim under examination (individually or in combination) that the examiner
believes recites an abstract idea.” 2019 Revised 101 Guidance, 84 Fed. Reg.
at 54.
9 This corresponds to Prong One [“Evaluate Whether the Claim Recites a
Judicial Exception”] (b) of Step 2A of the 2019 Revised 101 Guidance. “To
determine whether a claim recites an abstract idea in Prong One, examiners
are now to: . . . (b) determine whether the identified limitation(s) falls within
the subject matter groupings of abstract ideas enumerated in Section 1 of the
[2019 Revised 101 Guidance].” 2019 Revised 101 Guidance, 84 Fed. Reg. at
54. This case implicates subject matter grouping “(b)”: “(b) Certain methods
of organizing human activity—fundamental economic principles or practices
(including hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts; legal
obligations; advertising, marketing or sales activities or behaviors; business
relations); managing personal behavior or relationships or interactions
between people (including social activities, teaching, and following rules or
instructions).” Id. at 52.
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Technical Improvement10 (Appellant’s Argument)
Our characterization of what the claim is directed to is similar to the
Examiner’s “calculating commissions relating to the trading of financial
instruments” (Final Act. 2). The Examiner’s characterization is described at
a somewhat lower level of abstraction. Nevertheless, “[a]n abstract idea can
generally be described at different levels of abstraction.” Apple, Inc. v.
Ameranth, Inc., 842 F.3d 1229, 1240–41 (Fed. Cir. 2016) (“The Board’s
slight revision of its abstract idea analysis does not impact the patentability
analysis.”).
We have reviewed the record and are unpersuaded as to error in our or
the Examiner’s characterization of what claim 1 is directed to.
Appellant contends that the claimed subject matter yields various
improvements and advantages. See, e.g., the following:
• “these claimed features help to improve computer performance
by facilitating real time communication, over a communication
network, between a computer and remote computing device, of
real time financial data …” (Appeal Br. 7);

10 This corresponds to Prong Two [“If the Claim Recites a Judicial
Exception, Evaluate Whether the Judicial Exception Is Integrated Into a
Practical Application”] of Step 2A of the 2019 Revised 101 Guidance. “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.” 2019 Revised
101 Guidance, 84 Fed. Reg. at 54. One consideration, implicated here, that is
“indicative that an additional element (or combination of elements) may
have integrated the exception into a practical application” is if “[a]n
additional element reflects an improvement in the functioning of a computer,
or an improvement to other technology or technical field.” Id. at 55.

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• “[t]he claimed features [ ] allow a computer to perform a
function not previously performable by a computer and are
implemented using a particular machine” (id. at 8);

• “helps facilitate real time, high speed communication and
processing, which increases the efficiency of using a computing
device in combination with a communication network and a first
computing device” (id.);

• the subject matter is integrated into a practical application of
an abstract idea which is directed to improvements in
computer performance, particularly by a processor controlling
real time communication among multiple computing devices
(e.g., the apparatus, the remote computing device and the first
computing device), which helps facilitate real time, high speed
communication and processing, without delay and with high
reliability and accuracy, of information associated with
transactions between a user of the first computing device and the
processor of the apparatus (e.g., a server)” (id. at 9);

• “claim features clearly are rooted in networking and computers,
and recite improvements to technology rooted in networking and
computers which integrate a judicial exception into a practical
application” (id. at 9–10);

• “these techniques help improve computer performance, by
controlling the amount of information transmitted over the
network and controlling computer workload including
computer resources such as memory resources, processor
resources, and network resources such as network bandwidth,
which increases the efficiency of using an electronic trading
device” (id. at 11–12);

• “to an improved graphical user interface which provides
advantages over prior art systems which improves the efficiency
of the electronic devices, thereby overcoming disadvantages of
prior systems” (id. at 12); and,

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• “the claimed features provide an improved graphical user
interface by controlling the information being displayed on
graphical user interfaces, which may increase the efficiency of
using the electronic devices. Appellant requests that the Board
find that the presently claimed invention, which includes features
of a user interface which may improve the efficiency of using
the electronic devices, is patent-eligible” (id.).
We are unpersuaded by these contentions. Setting aside that we have
been unable to find any discussion of said improvements/advantages in the
Specification, the argued–over improvements do not reflect technological
improvements. For example, Appellant argues that the “claimed features
help to improve computer performance by facilitating real time
communication . . . .” Id. at 7. But we do not see and Appellant does not
explain how “facilitating real time communication” “improve[s] computer
performance.” We can understand that a computer can help facilitate real
time communication. That is a result one would expect from using a generic
computer, like those disclosed as exemplary systems for the claimed
invention (see, e.g., Spec. para. 35). But Appellant does not adequately
explain how any of the recited functions improve the computer itself. Cf.
Trading Technologies International, Inc. v. IBG LLC, 921 F.3d 1084, 1091
(Fed. Cir. 2019):
TT also argues that the claimed invention improves speed,
accuracy, and usability compared to prior art GUI tools, which
are necessarily rooted in computer technology. As discussed,
these purported improvements are not technological. The
specification states that the invention “provide[s] the trader with
improved efficiency and versatility in placing, and thus
executing, trade orders for commodities in an electronic
exchange.” ’374 patent at 3:21–24. This is focused on improving
the trader, not the functioning of the computer. Indeed, the
specification acknowledges that the invention “can be
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implemented on any existing or future terminal with the
processing capability to perform the functions described,” id. at
4:4–6, and “is not limited by the method used to map the data to
the screen display,” which “can be done by any technique known
to those skilled in the art,” id. at 4:64–67.
Appellant contends that the claimed subject matter is similar to that
before the court in DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245
(Fed. Cir. 2014) and Core Wireless Licensing S.A.R.L. v. LG Electronics,
Inc., 880 F.3d 1356 (Fed. Cir. 2018). Appeal Br. 12–13. According to
Appellant, “[h]ere, like in DDR Holdings, claim 1 clearly recites
improvements to technology that are rooted in networking and computers
and, thus, integrate a judicial exception into a practical application. Among
other things, speed, usability and efficiency are technological improvements
addressed by the claims that are rooted in computers and networking.” Id.
at 12. “As with the patents upheld in Core Wireless, Appellant's claimed
subject matter is also drawn to improved user interfaces which provide
advantages over the prior art systems and improves the efficiency of the
electronic devices and the electronic trading systems, thereby
overcoming disadvantages of prior systems.” Id. at 13.
However, we do not find that the claim adequately reflects an
improved technical solution to a problem associated with the computers,
networks and/or interfaces.
Regarding DDR Holdings, as the court has explained:
In DDR Holdings, the claimed invention solved the problem of
allowing a website visitor to view a hyperlinked advertisement
without being forced to leave the first website once the
advertisement’s hyperlink was activated. 773 F.3d. at 1258–59.
The claims recited “an invention that is not merely the routine or
conventional use of the Internet.” Id.
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Free Stream Media Corp. v. Alphonso Inc., 996 F.3d 1355, 1365 (Fed. Cir.
2021). Appellant does not explain and we are unable to understand in what
way the claimed system improves on the routine or conventional use of the
generic computers and networks.
In Core Wireless claims reciting an improved user interface for
electronic devices that improved the efficiency of the electronic device,
“particularly those with small screens” were held patent–eligible. But here
the user interface is invoked merely as a tool; it is not itself being improved.
Cf. Customedia Technologies, LLC v. Dish Network Corporation, 951 F.3d
1359, 1364–65 (Fed. Cir. 2020):
We have held that it is not enough, however, to merely
improve a fundamental practice or abstract process by invoking
a computer merely as a tool. For example, in Affinity Labs. of
Texas, LLC v. DIRECTV, LLC, we held that claims to a method
of providing out-of-region access to regional broadcasts were
directed to an abstract idea. 838 F.3d 1253, 1258 (Fed. Cir.
2016). We determined the claims were not a patent-eligible
improvement in computer functionality because they simply
used cellular telephones “as tools in the aid of a process focused
on an abstract idea.” Id. at 1262; ….
We have also held that improving a user’s experience
while using a computer application is not, without more,
sufficient to render the claims directed to an improvement in
computer functionality. For example, in Trading Techs. I, we
held patent ineligible claims directed to a computer-based
method for facilitating the placement of a trader’s order. Trading
Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1092–93 (Fed. Cir.
2019) (Trading Techs. I). Although the claimed display
purportedly “assist[ed] traders in processing information more
quickly,” we held that this purported improvement in user
experience did not “improve the functioning of the computer,
make it operate more efficiently, or solve any technological
problem.” Id.; see also Trading Techs. Int’l, Inc. v. IBG LLC, 921
F.3d 1378, 1381, 1384–85 (Fed. Cir. 2019) (Trading Techs. II)
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(holding that claims “focused on providing information to traders
in a way that helps them process information more quickly” did
not constitute a patent-eligible improvement to computer
functionality).
The claim provides no additional structural details that would
distinguish any device required to be employed to practice the claimed
subject matter as claimed, such as the recited “processor,” “communication
network,” “first computing device” with a “display,” “user interface” with
an “interactive region,” and “remote computing device” from its generic
counterparts.11
With respect to the “presenting,” “receiving,” “computing,”
“populating,” “receiving,” “causing,” “receiving,” “computing,”
“populating,” “receiving,” and “submitting” functions, the Specification
attributes no special meaning to any of these operations, individually or in
the combination, as claimed. In our view, these are common computer
processing functions that one of ordinary skill in the art at the time of the
invention would have known generic computers were capable of performing
and would have associated with generic computers. Cf. OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015):
Beyond the abstract idea of offer-based price optimization, the
claims merely recite “well-understood, routine conventional
activit[ies],” either by requiring conventional computer activities
or routine data-gathering steps. Alice, 134 S.Ct. at 2359 (quoting
Mayo, 132 S.Ct. at 1294) . . . . For example, claim 1 recites

11 Cf. Move, Inc. v. Real Estate Alliance Ltd., 721 F. App’x 950, 954 (Fed.
Cir. 2018) (non-precedential) (“Claim 1 is aspirational in nature and devoid
of any implementation details or technical description that would permit us
to conclude that the claim as a whole is directed to something other than the
abstract idea identified by the district court.”).
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“sending a first set of electronic messages over a network to
devices,” the devices being “programmed to communicate,”
storing test results in a “machine-readable medium,” and “using
a computerized system . . . to automatically determine” an
estimated outcome and setting a price. Just as in Alice, “all of
these computer functions are ‘well-understood, routine,
conventional activit[ies]’ previously known to the industry.”
Alice, 134 S.Ct. at 2359 (quoting Mayo, 132 S.Ct. at 1294)
(alterations in original); see also buySAFE[, Inc. v. Google, Inc.],
765 F.3d [1350,] 1355 [(Fed. Cir. 2014)] (“That a computer
receives and sends the information over a network—with no
further specification—is not even arguably inventive.”).
We find the Appellant’s contention that the claim improves
technology unpersuasive as to error in the Examiner’s or our
characterization of what the claim is directed to because the system as
claimed fails to adequately support it. We are unable to point to any claim
language suggestive of an improvement in technology. An argument that
such an improvement exists is alone insufficient. See generally In re
Schulze, 346 F.2d 600, 602 (CCPA 1965); In re Glass, 474 F.2d 1015, 1019
(CCPA 1973); In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974); and In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Accordingly, within the meaning of the 2019 Revised 101 Guidance,
we find there is no integration of the abstract idea into a practical
application.
We note Appellant’s discussion about the claim 1 limitation

causing, over the communication network, at the display
of the first computing device, display of a pop-up interactive
region and automatically repositioning display of the
predetermined indicia from at the second subregion to at another
position on the display different from the second subregion.
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Emphasis added. See Appeal Br. 10–11.
If we understand the argument correctly, Appellant takes issue with
the Examiner’s assertion that pop–up windows are well known. But there
can be no issue of material fact that pop–ups were ubiquitous at the time the
application was filed. See Webster’s New World Dictionary of Computer
Terms, Eighth Edition, 2000, p. 421 (entry for “pop–up menu”: “Microsoft
95/98 makes extensive use of pop–up menus, both for editing and tutorial
tasks.”)
Appellant also appears to be suggesting that said recited limitation
provides an additional technical feature of “automatically repositioning
display of predetermined indicia from at the second subregion to at another
position on the display different from the second subregion” that renders the
claim as a whole patent–eligible. Appellant makes such an argument in favor
of patent–eligibility for dependent claim 12. See Appeal Br. 16.
However, Appellant does not explain further how said limitation (in
claims 1 and 12) draws the claimed subject matter away from the abstract
idea as the Examiner (and we) have characterized it. The difficulty is that
rather than showing that “automatically repositioning display” describes a
technical improvement, the Appellant points to result-based functional
language that is without any means for achieving any purported
technological improvement. By so broadly defining the function, that is, by
setting out what it is aspiring to accomplish (i.e., “automatically
repositioning display”) without any technical details for achieving it, let
alone any purported technological improvement, this function, and the claim
as a whole, is in effect presenting the invention in purely result-based
functional language, strengthening our determination under Alice step one
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that the claim is directed to an abstract idea; that is, “a system for submitting
an order for execution based on selected financial information.” Cf. Two-
Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337
(Fed. Cir. 2017) (“Claim 1 recites a method for routing information using
result-based functional language. The claim requires the functional results of
‘converting,’ ‘routing,’ ‘controlling,’ ‘monitoring,’ and ‘accumulating
records,’ but does not sufficiently describe how to achieve these results in a
non-abstract way.”). See also Uniloc USA, Inc. v. LG Elecs. USA Inc.,
957 F.3d 1303, 1308 (Fed. Cir. 2020):
The claims we held ineligible in Two-Way Media similarly failed
to concretely capture any improvement in computer
functionality. In Two-Way Media, the claims recited a method of
transmitting packets of information over a communications
network comprising: converting information into streams of
digital packets; routing the streams to users; controlling the
routing; and monitoring the reception of packets by the users.
874 F.3d at 1334. Two-Way Media argued that the claims solved
data transmission problems, including load management and
bottlenecking, but the claimed method was not directed to those
improvements. Id. at 1336–37. We therefore held the claims
ineligible because they merely recited a series of abstract steps
(“converting,” “routing,” “controlling,” “monitoring,” and
“accumulating records”) using “result-based functional
language” without the means for achieving any purported
technological improvement. Id. at 1337.
We have considered Appellant’s other arguments challenging the
Examiner’s determination under step one of the Alice framework and find
them unpersuasive. For the foregoing reasons, the record supports the
Examiner’s determination that claim 1 is directed to an abstract idea.
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Alice step two — Does the Claim Provide an Inventive Concept?12
Step two is “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 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 73 (2012)).
In that regard, the Examiner determined, inter alia, “that the claim(s)
does/do not include additional elements that are sufficient to amount to
significantly more than the judicial exception because the additional
elements when considered both individually and as an ordered combination
do not amount to significantly more that the abstract idea(s).” Final Act. 7.
We agree.
Appellant’s only argument is that “[t]he Final Action fails to perform
a proper analysis of eligibility under Step 2B of 2019 PEG.” Appeal Br. 14.
According to Appellant, the Examiner is required to support in writing “that
claim elements cannot be well understood, routine, or conventional.” Id.
We cited the Specification in our earlier discussion. It is intrinsic
evidence that the claimed “processor,” “communication network,” “first
computing device” with a “display,” “user interface” with an “interactive
region,” and “remote computing device” as claimed are conventional. In
doing so, we have followed “Changes in Examination Procedure Pertaining

12 This corresponds to Step 2B, of the 2019 Revised 101 Guidance, 84 Fed.
Reg. at 56 “if a claim has been determined to be directed to a judicial
exception under revised Step 2A, examiners should then evaluate the
additional elements individually and in combination under Step 2B to
determine whether they provide an inventive concept (i.e., whether the
additional elements amount to significantly more than the exception itself).”
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to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP Inc.[, 881 F.3d 1360 (Fed. Cir. 2018)],” USPTO
Memorandum, Robert W. Bahr, Deputy Commissioner For Patent
Examination Policy, April 19, 2018 (the “Berkheimer Memo”)).
Here, the Specification indisputably shows the recited “processor,”
“communication network,” “first computing device” with a “display,” “user
interface” with an “interactive region,” and “remote computing device”
individually and in the context of the finance scheme as claimed were
conventional at the time of filing. Accordingly, there is sufficient factual
support on the record for the well-understood, routine, or conventional
nature of the claimed “processor,” “communication network,” “first
computing device” with a “display,” “user interface” with an “interactive
region,” and “remote computing device” individually and in the combination
as claimed.
No other persuasive arguments having been presented, we conclude
that no error has been committed in the determination under Alice step two
that claim 1 does not include an element or combination of elements
circumscribing the patent-ineligible concept it is directed to so as to
transform the concept into a patent-eligible application.
We have considered all of the Appellant’s arguments and find them
unpersuasive.
Accordingly, because we are not persuaded as to error in the
determinations that claims 1–12 are directed to an abstract idea and do not
present an “inventive concept,” we sustain the Examiner’s conclusion that
they are directed to patent-ineligible subject matter for being judicially-
excepted from 35 U.S.C. § 101. Cf. LendingTree, LLC v. Zillow, Inc.,
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656 F. App’x 991, 997 (Fed. Cir. 2016) (“We have considered all of
LendingTree’s remaining arguments and have found them unpersuasive.
Accordingly, because the asserted claims of the patents in suit are directed to
an abstract idea and do not present an ‘inventive concept,’ we hold that they
are directed to ineligible subject matter under 35 U.S.C. § 101.”); see, e.g.,
OIP Techs., 788 F.3d at 1364; FairWarning IP, LLC v. Iatric Sys., Inc.,
839 F.3d 1089, 1098 (Fed. Cir. 2016).
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10 Nonstatutory
Double Patenting
1–10
1–12 101 Eligibility 1–12
Overall
Outcome
1–12

TIME PERIOD FOR RESPONSE
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