CFPH, LLC

Patent Trials and Appeals Board

Dec 21, 2021

2021003435 (P.T.A.B. Dec. 21, 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.
13/773,915 02/22/2013 Lee Amaitis 12-2349 7356
63710 7590 12/21/2021
CANTOR FITZGERALD, L.P.
INNOVATION DIVISION
110 EAST 59TH STREET
NEW YORK, NY 10022
EXAMINER
YOO, JASSON H
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
12/21/2021 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 LEE AMAITIS
Appeal 2021-003435
Application 13/773,915
Technology Center 3700
Before JENNIFER D. BAHR, EDWARD A. BROWN, and
JEREMY M. PLENZLER, Administrative Patent Judges.
PLENZLER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5, 7–10, 12–17, and 19–23. 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 CFPH, LLC.
Appeal Br. 3.
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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A method comprising:
receiving, by a computing device from a first mobile
computing device of a first user over a communication network,
a selection of a plurality of participants for a team in a fantasy
sports game, the selection of the plurality of participants received
prior to the start of a plurality of events, in which a first of the
participants and a second of the participants are determined to be
participating in different events, such that the first participant is
determined to be participating in a first of the events but not a
second of the events, and such that the second participant is
determined to be participating in the second of the events but not
the first of the events;
receiving, by the computing device from the first mobile
computing device over the communication network, an
accomplishment chosen by the first user;
receiving, by the computing device from another
computing device over the communication network, in real time,
real time event information;
in response to receiving the selection of the plurality of
participants, the accomplishment and the real time event
information, determining, by the computing device, odds for the
fantasy sports game that is based on whether the team will
achieve the accomplishment in the plurality of events, in which
the odds determination is based on an expected performance
value for the team determined using historic data about
performance of the plurality of participants and the real time
event information;
offering, by the computing device over the communication
network, in real time, at a first graphical user interface of the first
mobile computing device and a second graphical user interface
of a second mobile computing device, the fantasy sports game
for play with the odds through the computing device;
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receiving, by the computing device over the
communication network from the first mobile computing device,
an acceptance of the offer from the first user that identifies an
amount of money risked through play of the fantasy sports game
through the computing device;
determining, by the computing device, an outcome of the
fantasy sports game based on whether the team achieved the
accomplishment in the plurality of events; and
determining, by the computing device, whether to provide
a payment to the first user based on the outcome.
REJECTIONS
Claims 1–3, 5, 7–10, 12–17, and 19–23 are rejected under 35 U.S.C.
§ 101 as being patent-ineligible.
Claims 1–3, 5, 7–10, 12–17, and 19–23 are rejected under 35 U.S.C.
§ 112(a) as failing to comply with the written description requirement.
OPINION
Patent Eligibility
The Examiner determines that the claims are patent-ineligible under
35 U.S.C. § 101. Final Act. 2–10. Appellant argues claims 1–3, 5, 7–10,
12–17, and 19–23 as a group. Appeal Br. 14–24.2 We select claim 1 as
representative. Claims 2, 3, 5, 7–10, 12–17, and 19–23 stand or fall with
claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and

2 Although Appellant provides a separate heading for independent claim 17,
there is no separate argument. See Appeal Br. 23.
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useful improvement thereof” is patent eligible. 35 U.S.C. § 101. Claim 1
falls within the literal scope of this provision because it recites a method.
The Supreme Court, however, has long recognized an implicit
exception to this section: “Laws of nature, natural phenomena, and abstract
ideas are not patentable.” Alice Corp. v. CLS Bank lnt’l, 573 U.S. 208, 216
(2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc.,
569 U.S. 576, 589 (2013)). To determine whether a claim falls within one of
these excluded categories, the Court has set out a two-part framework. The
framework requires us first to consider whether the claim is “directed to one
of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then
examine “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. (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)).
That is, we examine the claims for an “inventive concept,” “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 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
Under the 2019 Eligibility Guidance, to decide whether a claim is
“directed to” an abstract idea, we evaluate whether the claim (1) recites an
abstract idea grouping listed in the guidance and (2) fails to integrate the
recited abstract idea into a practical application. See 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 51 (Jan. 7, 2019)
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(“2019 Eligibility Guidance”).3,4 The groupings of abstract ideas listed in
the guidance include, for example: “Mathematical concepts,” “Certain
methods of organizing human activity,” and “Mental processes.” 2019
Eligibility Guidance, 84 Fed. Reg. at 52. If the claim is “directed to” an
abstract idea, as noted above, we then determine whether the claim recites an
inventive concept. The guidance explains that, when making this
determination, we should consider whether the additional claim elements
add “a specific limitation or combination of limitations that are not [a] well-
understood, routine, conventional activity in the field” or “simply append[]
well-understood, routine, conventional activities previously known to the
industry.” 2019 Eligibility Guidance, 84 Fed. Reg. at 56.
Step 2(A), Prong 1
The Examiner determines that essentially every step of claim 1 recites
abstract ideas in the certain methods of organizing human activity category.
Final Act. 2–5. Appellant does not dispute this determination. Rather,
Appellant contends that the claim integrates the recited abstract idea into a
practical application and recites an inventive concept.
We agree with, and adopt for purposes of this decision, the
Examiner’s undisputed determination that virtually everything recited in
claim 1 relates to organizing human activity. Accordingly, we are not

3 An Appendix to the 2019 Eligibility Guidance (“Appendix I”) includes
examples 37–42 illustrating eligibility analysis.
4 An update to the 2019 Revised Patent Subject Matter Eligibility Guidance
issued in October 2019 (“October 2019 Update,” available at https://
www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.pdf).
An Appendix to the October 2019 Update (“Appendix II”) includes
examples 43–46 illustrating eligibility analysis.
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apprised of error in the Examiner’s determination that claim 1 recites an
abstract idea.
Step 2(A), Prong 2
The Examiner determines that the remaining limitations in claim 1
essentially amount to instructions to carry out the abstract ideas on a
computer. See, e.g., Final Act. 6–7. Appellant responds by alleging that
“the claimed invention is directed to improvements in computer performance
specifically arising in a computer network and communication networks.”
See, e.g., Appeal Br. 17 (emphasis omitted). Appellant contends that “[i]n
one example, the claimed features may help control activity over the
network and control computer workload including computer resources” and
“allow a computer to perform a function not previously performable by a
computer and are implemented using a particular machine.” Appeal Br. 16
(citing Spec. ¶¶ 46, 47, 53, 77, 79).5
Neither the claim nor the cited portions of the Specification support
Appellant’s position. Beyond the abstract ideas noted above, the claim adds
nothing more than generic computer components and functionality. For
example, the claim recites a generic “computing device” that receives
information from a generic “mobile computing device” over a generic
“communication network.” Information is presented on a generic “graphical
user interface” of a mobile device. The claim provides no detail regarding
these additional features, which essentially amount to use of computers as a
tool to carry out the abstract ideas.6

5 Appellant cites to the published version of the Specification.
6 Appellant additionally alleges that it “has not been provided with sufficient
notice to effectively respond to the rejections under Section 101” because
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Even the cited portions of the Specification fail to provide any more
than generic functions of a computer. Paragraph 46, for example, simply
explains that “[e]vent server 203 may be configured to receive and/or
process information regarding events,” without further detail as to how that
function is carried out. Paragraph 47 adds that “[e]vent server 203 may
determine fantasy sport outcomes and/or points based on the events,” and
provides an example where “the event server may be configured to add a
point to the participant when information identifying that the player scored
the touchdown is received.” Paragraph 53 explains that “[e]vent source 213
may include any desired source of information related to events.” Paragraph
77 describes “receiving an indication to form a game involving the first
fantasy team and/or the second fantasy team (e.g., in embodiments where
there are two or more teams in a game),” which “may be received from one
or more client computers, from a gaming system, and so on.” Paragraph 78
simply states that “[i]n some embodiments, various game related actions
may be performed, such as debiting and/or crediting accounts, obtaining
signed contracts, collecting chips or money, and so on.”
At step 2A, prong 2, we are instructed to “evaluate integration into a
practical application by: (a) Identifying whether there are any additional
elements recited in the claim beyond the judicial exception(s); and (b)

sufficient explanation was not provided “how the . . . claim limitations were
evaluated as additional elements and explaining why such additional
elements do not amount to significantly more than the purported abstract
idea.” Appeal Br. 18 (emphasis omitted). It is unclear what further
explanation Appellant is looking for when, as here, the Examiner makes
clear that the additional components are simply generic computer
components. See, e.g., Final Act. 7.
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evaluating those additional elements individually and in combination to
determine whether they integrate the exception into a practical application.”
2019 Eligibility Guidance, 84 Fed. Reg. at 55. The computer features are
additional elements in claim 1. “[A] judicial exception has not been
integrated into a practical application” when, as in claim 1 of the present
application, “[a]n additional element merely recites the words ‘apply it’ (or
an equivalent) with the judicial exception, or merely includes instructions to
implement an abstract idea on a computer, or merely uses a computer as a
tool to perform an abstract idea.” Id. There is no improvement in computer
performance as alleged by Appellant.
For the reasons set forth above, we agree that claim 1 is directed to an
abstract idea.
Step 2(B)
Because we agree with the Examiner that claim 1 is directed to an
abstract idea, we next determine whether the claim provides an inventive
concept. See 2019 Eligibility Guidance, 84 Fed. Reg. at 56. This requires us
to evaluate whether the additional claim elements add “a specific limitation
or combination of limitations that are not [a] well-understood, routine,
conventional activity in the field” or “simply append[] well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality.” Id.
The Examiner determines that the claim does not include additional
elements that are sufficient to amount to significantly more than the judicial
exception and, instead, simply adds well-understood, routine, and
conventional activities previously known to the industry, specified at a high
level of generality. Final Act. 7–10. Appellant does not dispute the
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Examiner’s determination in any meaningful way. Rather, Appellant alleges
that the Examiner fails to support the findings related to the routine and
conventional nature of the additional claim features as required by the
Berkheimer Memo7. Appeal Br. 21–22.
The Examiner, however, provides sufficient basis to conclude that the
additional features are well-understood, routine, and conventional. See Final
Act. 8–9. Appellant’s Specification supports the Examiner’s position. See,
e.g., Spec. ¶¶ 49–53 (describing the networks and devices used at such a
high level of generality that they must be known networks and devices in
order to comply with 35 U.S.C. § 112(a)).8
Accordingly, we are not apprised of error in the Examiner’s
determination that the claim does not add any inventive concept.
Conclusion
For the reasons set forth above, after applying the 2019 Eligibility
Guidance, we sustain the Examiner’s decision to reject claims 1–3, 5, 7–10,
12–17, and 19–23 under 35 U.S.C. § 101.

7 USPTO, Memorandum on Changes in Examination Procedure Pertaining
to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision
(Berkheimer v. HP, Inc.) (Apr. 19, 2018), available at
https://www.uspto.gov/sites/default/files/documents/memo-berkheimer-
20180419.PDF (“Berkheimer Memo”).
8 A specification that describes additional elements “in a manner that
indicates that the additional elements are sufficiently well-known that the
specification does not need to describe the particulars of such additional
elements to satisfy 35 U.S.C. § 112(a)” can show that the elements are well
understood, routine, and conventional. Berkheimer Memo at 3.
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Written Description
The Examiner rejects the claims as lacking written description support
for a number of reasons. Final Act. 10–17. We discuss the rejection with
respect to independent claim 1, as the same bases are relied on by the
Examiner with respect to independent claim 17. See Final Act. 12.
The Examiner determines that the “in real time” limitations recited in
the claims are not supported by the written description. The relevant
portions of claim 1 recite “receiving, by the computing device from another
computing device over the communication network, in real time, real time
event information,” “determining . . . odds . . . using . . . the real time event
information,” and “offering . . . in real time, at a first graphical user interface
of the first mobile computing device and a second graphical user interface of
a second mobile computing device, the fantasy sports game for play with the
odds through the computing device.”
The Examiner acknowledges that paragraph 46 of the Specification
discloses that “[e]vent server 203 may be configured to receive and/or
process information regarding events . . . substantially simultaneously as the
event happening.” Final Act. 11 (quoting Spec. ¶ 46) (emphasis omitted).
Without explanation, the Examiner concludes that “‘[r]eal time’ is the actual
time during which a process or event occurs” and “is not the same as
substantially the same time as the event is happening.” Id. at 12.
The Examiner’s rejection related to the recitation of “offering . . . in
real time . . . the fantasy sports game for play with the odds through the
computing device” at first and second mobile computing devices requires a
reading of the claim where the “second mobile computing device”
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corresponds to a second user, rather than simply a second device. See Final
Act. 13–14; Ans. 23–24.
Based on the record before us, we fail to see why one skilled in the art
would not have appreciated that “substantially simultaneously” is “in real
time,” as there is necessarily some delay in transmitting information.
Further, the “second user” referenced by the Examiner is found nowhere in
claim 1, or any other claim.
For at least the reasons set forth above, we do not sustain the
Examiner’s decision to reject the claims as lacking written description
support.
CONCLUSION
The Examiner’s rejection under 35 U.S.C. § 101 is affirmed and the
rejection under 35 U.S.C. § 112(a) is reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 5, 7–
10, 12–17,
19–23
101 Eligibility 1–3, 5, 7–
10, 12–17,
19–23

1–3, 5, 7–
10, 12–17,
19–23
112 Written
Description
1–3, 5, 7–
10, 12–17,
19–23
Overall
Outcome
1–3, 5, 7–
10, 12–17,
19–23

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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