BGC PARTNERS, L.P.

Patent Trials and Appeals Board

Aug 2, 2021

2021000649 (P.T.A.B. Aug. 2, 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.
15/867,325 01/10/2018 Howard W. Lutnick 17-2476 7442
63710 7590 08/02/2021
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
HARPER, GREGORY WILLIAM
ART UNIT PAPER NUMBER
3692
NOTIFICATION DATE DELIVERY MODE
08/02/2021 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 and ANTONIO MERCARDO
Appeal 2021-000649
Application 15/867,325
Technology Center 3600
Before DEBORAH KATZ, JOHN G. NEW, and ROBERT A. POLLOCK,
Administrative Patent Judges.
KATZ, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1–19. 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 the real party in interest as BGC PARTNERS,
L.P. Appeal Br. 3.
2 We consider the Final Office Action issued February 20, 2020 (“Final
Act.”), the Appeal Brief filed July 20, 2020 (“Appeal Br.”), the Examiner’s
Answer issued September 4, 2020 (“Ans.”), and the Reply Brief filed
November 2, 2020 (“Reply Br.”).
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2
Appellant’s Specification is directed to an apparatus and method for
reducing the time it takes to enter an order for an electronic trade using a
graphical user interface. (See Spec. ¶ 9.) The method allows for a trade to
be submitted through a network upon release of a held-price field selection,
thereby significantly reducing the time it takes to enter an order. (See id.
¶ 23.) The Specification describes the method as “an improvement over
conventional computer technology that requires a trader to manually
populate all the required fields at the time of order entry.” (Id.)
Appellant’s claim 1 recites:
An apparatus comprising:
a display screen;
a network interface;
an input device;
at least one processor to:
render on the display screen a graphical user
interface having a plurality of rows, each row having a product
field, a bid field, and an offer field;
detect via the input device a selection of a bid field
or an offer field at a row of the plurality of rows;
determine whether the selection is continuously
maintained for a period of time;
detect a release of the selection of the bid field or
the offer field; and in response to the release of the selection after
the selection was continuously maintained for the period of time,
transmit, via the network interface, an order for a product
specified in the product field of the row at a price specified in the
bid field or the offer field of the row.
(Appeal Br. 17.) Appellant’s independent claim 9 recites a method for
performing the functions of claim 1. (See id. at 18.) Appellant’s
independent claim 17 recites an apparatus, similar to claim 1, with at least
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one processor to detect first, second, and third inputs, among other
additional limitations. (See id. at 19–20.)
The Examiner rejects claims 1–19 under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. (Final Act. 2–4.) The Examiner
also rejects claims 1, 5–9, 13–17, and 19 under 35 U.S.C. § 102(a)(1) over
Rutt.3 (Final Act. 5–9.) The Examiner rejects claims 2–4, 10–12, and 18
under 35 U.S.C. § 103 over Rutt and Singer.4 (Final Act. 9–12.)
35 U.S.C. § 101
The Examiner rejects claims 1–19 under § 101 as being directed to
patent-ineligible subject matter. (Final Act. 2–4.) Appellant argues claims
1–19 together. (See Appeal Br. 8–11.) We therefore analyze claim 1 as
exemplary below.
Standard for Subject Matter Eligibility
For issues involving subject matter eligibility under § 101, we apply
the two-step test set forth in Alice Corp. v. CLS Bank Int’l, 573 U.S. 208
(2014). In the first step, we “determine whether the claims at issue are
directed to a patent-ineligible concept.” (Id. at 218.) If the initial threshold
is met, we move to the second step, in which we “consider the elements of
each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” (Id. at 217 (quoting Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 78–79 (2012))). The second step is

3 Rutt et al., US Patent Application Publication 2006/0253371 A, published
November 9, 2006.
4 Singer, US Patent Application Publication 2015/0081502 A1, published
March 19, 2015.
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“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.’” (Id. at
217–18 (quoting Mayo, 566 U.S. at 72–73) (alteration in original).)
The USPTO has published guidance on the application of
Section 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84
Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the Guidance and the
October 2019 Update, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes) (“Step 2A, Prong 1”); and

(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h) (9th
ed. Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong 2”).5
Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look, under
Step 2B, to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or

5 This evaluation is performed by (a) identifying whether there are any
additional elements recited in the claim beyond the judicial exception, and
(b) evaluating those additional elements individually and in combination to
determine whether the claim as a whole integrates the exception into a
practical application. See Guidance - Section III(A)(2), 84 Fed. Reg. 54–55.
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(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
Guidance, 84 Fed. Reg. at 52–56.
Step 2A, Prong 1
Under Step 2A, Prong 1, of the Guidance, we determine whether the
claims recite any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing human
activity, or mental processes). See 84 Fed. Reg. at 52, 54. The Examiner
finds that the claims recite “transmitting an order” which is a commercial
interaction or fundamental economic practice falling under the abstract idea
category of “methods of organizing human activity.” (See Final Act. 3.)
Appellant does not dispute that the claims recite an abstract idea,
arguing instead that the abstract idea is integrated into a practical
application. (See Appeal Br. 8.) Accordingly, we agree with the Examiner
that the claims recite a judicial exception in the form of an abstract idea, in
the category of certain methods for organizing human activity.
Step 2A, Prong 2
Under Step 2A, Prong 2, of the Guidance, we determine whether the
claims as a whole integrate the judicial exception into a practical application
by identifying whether there are any additional elements recited in the claim
beyond the judicial exception. See 84 Fed. Reg. at 54–55. The Examiner
finds that the additional elements recited by the claims are “mere
instructions to implement the abstract idea on a computer in its ordinary
capacity,” and thus do not integrate the abstract idea into a practical
application. (Final Act. 3–4.) The Examiner finds further that the claimed
invention does not pertain to an improvement in the function of the
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computer itself or a technological solution to a technological problem. (Id.
at 4.)
Appellant argues that the claimed subject matter improves the
functioning of a computer by solving the problem of rapid price changes that
occur due to network velocity—a problem which is rooted in computer
technology. (See Appeal Br. 9.) Appellant argues that the Specification
describes how the invention improves computer technology, specifically
with an improved graphical user interface (“GUI”). (Id., citing Spec. ¶¶ 8, 9,
22.) Appellant argues that “the claimed GUI improvements” are similar to
claims found patent eligible in Core Wireless Licensing S.A.R.L. v. LG
Electronics MobileComm U.S.A., Inc., 880 F.3d 1356 (Fed. Cir. 2018). (See
id. at 10.) Specifically, Appellant argues that, similar to Core Wireless, “the
claimed subject matter of the instant case is also drawn to an improved
interface, which provides advantages over prior art systems by
improving the efficiency of electronic devices.” (Id.)
We have considered but are not persuaded by Appellant’s arguments.
We do not agree that Appellant’s claims recite additional elements that
integrate the abstract idea, i.e., fundamental economic practice, into a
practical application. Specifically, we do not agree with Appellant’s
argument that the claimed invention improves computer technology.
Appellant’s Specification explains that rapid price changes make it
difficult for trades to capture a desired price because the price moves before
the trader’s order is entered. (See Spec. ¶ 8.) To solve this problem,
Appellant’s invention allows a trade to be submitted to the network upon
release of a held-price field selection, where the trade may be submitted with
all the other non-price information automatically populated. (See id. ¶ 23.)
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The Specification explains that this is an improvement over conventional
technology requiring a trader to manually populate the required fields at the
time of order entry. (See id.) In other words, the claimed invention
automates a previously manual process for making offers for financial
trades, thereby improving the efficiency of that fundamental economic
process. However, as our reviewing court has held, “mere automation of
manual processes using generic computers does not constitute a patentable
improvement in computer technology.” Credit Acceptance Corp. v.
Westlake Servs., 859 F.3d 1044, 1055 (Fed. Cir. 2017).
We also find the claims distinguishable from those found eligible in
Core Wireless. In Core Wireless, our reviewing court held that the claimed
“limitations disclose a specific manner of displaying a limited set of
information to the user, rather than using conventional user interface
methods to display a generic index on a computer.” 880 F.3d at 1363. The
technological improvement was tied to problems associated with electronic
devices having small screens, and solved those problems by allowing the
user to quickly reach the desired data or function of interest. See id. at 1363.
Unlike the technological improvement in Core Wireless, the
additional elements—the display screen, network interface, input device(s)
for making inputs, and at least one processor for registering inputs—merely
add conventional computer components to the well-known business practice
of making offers for financial trades that would previously have been
performed in-person by a trader on a trading floor. See id. at 1362
(distinguishing “claims that merely ‘add[] conventional computer
components to well-known business practices’”) (alternation in original,
quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1338–39 (Fed. Cir.
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2016)). Likewise, the problem addressed by the claimed invention, the
speed of changing prices, is an economic problem associated with markets,
not a technological problem unique to computer systems. Accordingly, we
are not persuaded that the claimed invention is a practical application of an
abstract idea.
Step 2B
Under Step 2B of the Guidance, we continue to evaluate patent
eligibility by considering whether the claim provides an inventive concept
that amounts to significantly more than the exception itself. (See Guidance,
84 Fed. Reg. at 56.) The Examiner finds that Appellant’s Specification
describes the display screen, network interface, input device, and processor
as well understood, routine, and conventional devices, that do not amount to
significantly more than the judicial exception. (See Final Act. 4, citing Spec.
¶¶ 13, 14.) Moreover, the Examiner finds that Rutt demonstrates that
electronic trading using a personal computer is well understood, routine, and
conventional activity. (See Ans. 5.)
Appellant argues that the Final Action provides merely conclusory
statements, and instead “submit[s] that the claims include additional subject
matter that is not well-understood, routine, conventional activity.” (Appeal
Br. 11.)
We are not persuaded by Appellant’s argument. The Examiner
provides citations to both the Specification and the art showing that the
additional elements recited by the claims are well-understood, routine, and
conventional. For example, the Specification describes the computer
apparatus as various generic computing devices for performing generic
computer processes. (See Spec. ¶¶ 13, 14.) Likewise, the Examiner cites
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both Rutt and Singer for describing similar devices used in the context of
electronic trades, including methods for making offers based on inputs from
these devices. (See Final Act. 5–12; see also Ans. 5.) In contrast,
Appellant’s conclusory statement referring to an inventive concept is wholly
unsupported by argument or evidence. (See Appeal Br. 11.) Accordingly,
we are not persuaded that the Examiner erred in rejecting Appellant’s
pending claims as being directed to ineligible subject matter under 35 U.S.C.
§ 101.
35 U.S.C. § 102
The Examiner rejects Appellant’s claims as being anticipated under
35 U.S.C. § 102(a)(1). Specifically, the Examiner rejects claims 1, 5–9, 13–
17, and 19 over Rutt. (See Final Act. 5–9.) Appellant argues claims 1 and 9
together. (See Appeal Br. 12.) Thus, we focus our discussion on claim 1.
See 37 C.F.R. § 41.37(c)(1)(iv).
Rutt describes existing web-based automated trading systems in which
changes in market data outpace the ability of humans to act. (See Rutt ¶ 5.)
Rutt discloses that advanced software has integrated multiple steps or
keystrokes into one action to speed up such transactions, however, there is a
continued need for an on-screen mechanism to lock a price for electronic-
trade actions. (See id. ¶¶ 5–9.) To address this need, Rutt discloses an
electronic trading system including a price-lock popup system. (See id.
¶ 21.) The electronic system includes trading computers having displays and
interface software for submitting offers and bids in markets. (See id. ¶ 22.)
The computers include user input devices, such as a keyboard or mouse, for
traversing different areas of a user interface via an on-screen cursor. (See id.
¶ 24.) The user interface includes a markets window with a series of cells
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displaying informational columns, including bid price, offer price, and bid
quantity columns, among other information. (See id. ¶ 29.)
Rutt further describes a user interface with a floating price-lock
window used to initiate new orders. (See id. ¶ 37.) Moving the on-screen
cursor to a cell in a bid column signifying an offer displays the floating lock
window. (See id.) The lock window also has a lock icon signifying that the
price lock is in effect. (Id.) A user will activate the request for a new order
at the desired quantity and price by clicking on a mouse button. (Id.) Rutt
discloses that moving the cursor from the cell removes the lock window.
(See id.)
The Examiner finds that Rutt discloses a user interface corresponding
to the apparatus of claim 1 including a processor to detect a selection of a
bid field or offer field via an input device. (See Final Act. 5, citing Rutt
¶ 29, Fig. 2.) The Examiner finds that Rutt’s lock window corresponds to
the claimed limitation of determining whether the selection is continuously
maintained for a period of time. (See id. at 6, citing Rutt ¶ 37, Fig. 3.) The
Examiner finds that Rutt discloses that a new order will only be initiated
when the price and quantity match the lock when the user activates the
request, which corresponds to the claimed limitation of transmitting an order
for a product by detecting the release of a selection continuously maintained
for a period of time. (See id., citing Rutt ¶ 37, Fig. 3.)
Appellant argues that “Rutt transmits the order when the price and
quantity shown in the lock window matches the market price and quantity
not when the selection is released after continuously maintaining the
selection for a time period.” (Appeal Br. 12, emphasis omitted.)
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The Examiner responds that under the broadest reasonable
interpretation of the claims, “Rutt discloses a lock remains (reading on
‘continuously maintained’) until the desired price is reached (reading on
‘release’) or the trader breaks off the transaction.” (Ans. 6.) The Examiner
further interprets “continuously maintained” as including “a trader
depressing a buy button to submit [an] order.” (Id.)
We agree with the Examiner. Rutt teaches detecting a selection of a
bid or offer field with an input device, by displaying a lock window selected
using a mouse. Rutt teaches that the order can be made only when the lock
window is continuously maintained in the cell. Although Rutt teaches an
additional mouse input to complete the order and release the lock window,
we agree with the Examiner that the broadest reasonable interpretation of the
claims does not exclude this additional input. Accordingly, we are not
persuaded that the Examiner erred in rejecting claims 1 and 9, and their
dependent claims, as anticipated.
Appellant separately argues claim 17. (See Appeal Br. 13–14.)
Appellant argues that Rutt does not teach a target icon that is moved over a
bid field or offer field. (See id. at 14.) Appellant further argues that Rutt
“initiates an order the moment the locked price matches the current price,
whereas claim 17 provides, for example, that the target icon hovers over the
field continuously and indicates that the product is ready for trading (i.e. no
trade is initiated when the target icon continuously hovers for the period of
time).” (Id.)
The Examiner finds that the target icon and other limitations of claim
17 are taught by Rutt’s lock window and multiple inputs for making an offer
using the lock window. (See Final Act. 8–9, citing Rutt ¶¶ 37–40, Figs. 3–
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5.) Rutt describes detecting when a cursor enters a cell of a market window
thereby displaying a lock window, including a lock icon that signifies that
the price lock is activated. (See Rutt ¶ 37.) Accordingly, Rutt discloses a
target icon rendered on the display screen which hovers over a bid or offer
field under the broadest reasonable interpretation of the claim. Moreover,
we do not agree with Appellant that Rutt does not disclose further second
and third inputs to complete the transaction, as shown by the Examiner.
Accordingly, we are not persuaded that the Examiner erred in rejecting
claim 17 as anticipated.
35 U.S.C. § 103
The Examiner rejects Appellant’s claims as being obvious under 35
U.S.C. § 103. Specifically, the Examiner rejects claims 2–4, 10–12, and 18
over Rutt and Singer. (See Final Act. 9–12.) Appellant does not separately
argue against the Examiner’s obviousness rejection, and instead relies on the
arguments made against anticipation. (See Appeal Br. 15.) For the reasons
set forth above, we do not find that the Examiner erred, and affirm the
obviousness rejection. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejections.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–19 101 Eligibility 1–19
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13
1, 5–9, 13–
17, 19
102 Rutt 1, 5–9, 13–
17, 19

2–4, 10–12,
18
103 Rutt, Singer 2–4, 10–12,
18

Overall
Outcome
1–19

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) (2019).
AFFIRMED