CFPH, LLC

Patent Trials and Appeals Board

Jun 25, 2020

13888352 - (D) (P.T.A.B. Jun. 25, 2020)

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.
13/888,352 05/06/2013 Howard W. Lutnick 12-2322 8631
63710 7590 06/25/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
KAZIMI, HANI M
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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
patentdocketing@cantor.com
phowe@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, SHAWN MATTHEWS,
PHILIP NORTON, and KEVIN FOLEY
________________

Appeal 2019-005795
Application 13/888,352
Technology Center 3600
________________

Before JOHN A. JEFFERY, JASON J. CHUNG, and
BETH Z. SHAW, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1–5, 7–12, 17–20, 24, 26, 29, and 31.2 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. According to Appellant, CFPH, LLC is the real party in
interest. Appeal Br. 3.
2 Claims 6, 13–16, 21–23, 25, 27, 28, 30, and 32 are cancelled. Appeal Br.
18–20, 22, 23.
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INVENTION
The invention relates to trading and matching buyers and sellers of
trading products, e.g., electronically. Spec. ¶ 2. Claim 29 is representative
of the invention and is reproduced below:
29. An apparatus, comprising:
at least one processor; and
at least one memory having instructions stored thereon
which, when executed by the at least one processor, direct the at
least one processor to:
receive indicia indicating that a first user desires to trade
one of (1) a trading product and (2) a type of trading product
comprising the trading product;
determine that there is no currently active matching
contra interest to trade the one of (1) the trading product and (2)
the type of trading product in an electronic market place;
qualify each of a plurality of users to participate in an
auction for the trading product based on at least one of (a) a
portfolio of the user, (b) a trade history of the user, (c) an order
history of the user, (d) one or more outstanding orders of the
user, and (e) trading interest specified by the user, in which the
plurality of users comprises the first user, the plurality of users
consisting of a subset of users of the electronic marketplace;
determine a trading price for the auction for the trading
product;
cause a display device of the plurality of users to display:
indicia identifying the trading product;
the price;
an auction start time;
a bid quantity field for entering a quantity of the trading
product offered to purchase; and
an offer quantity field for entering a quantity of the trading
product offered for sale;
start an auction at the price for the plurality of users;
prior to an end time of the auction, receive at least one bid
to purchase the trading product and at least one offer to sell the
trading product, the at least one bid comprising a first-received
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bid to purchase a first quantity of the trading product, the at least
one offer comprising a first-received offer to sell a second
quantity of the trading product;
match and execute at least a portion of the first quantity of
the first-received bid with at least a portion of the second
quantity of the first-received offer;
in which the first-received bid is from a first bidder and
the first-received offer is from a first offeror;
in which an identity of the first bidder is not disclosed to
the first offeror prior to the auction end time, generating an
electronic command transmitted via an electronic
communication network to cause to execute a process on a first
electronic device of the first offeror to block the identity of the
first bidder from being rendered on an output portion of a
graphical user interface of the first electronic device of the first
offeror; and
in which an identity of the first offeror is not disclosed to
the first bidder prior to the auction end time, generating an
electronic command transmitted via an electronic
communication network to cause to execute a process on a first
electronic device of the first bidder to block the identity of the
first offeror from being rendered on an output portion of a
graphical user interface of the first electronic device of the first
bidder.

Appeal Br. 20–22 (Claims Appendix) (emphasis added).

REJECTION
The Examiner rejects claims 1–5, 7–12, 17–20, 24, 26, 29, and 31
under 35 U.S.C. § 101 as being directed to patent ineligible subject matter.
Final Act. 2.

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ANALYSIS
A. Principles of Law
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the U.S. Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part framework, described in Mayo and Alice.
Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first
determine what concept the claim is “directed to.” See Alice, 573 U.S. at
219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
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rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as
nothing more than a process for molding rubber products and not as an
attempt to patent a mathematical formula.”). Having said that, the Court
also indicated that a claim “seeking patent protection for that formula in the
abstract . . . is not accorded the protection of our patent laws, and this
principle cannot be circumvented by attempting to limit the use of the
formula to a particular technological environment.” Id. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
an application of a law of nature or mathematical formula to a known
structure or process may well be deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
“A claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo,
566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[]
fail[s] to transform that abstract idea into a patent-eligible invention.” Id.
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B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also Update at 1.
Under the 2019 Revised Guidance and the 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 One”); 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 Two”).4

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “Update”)
(available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
4 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 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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2019 Revised 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
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.
C. The Examiner’s Rejection and Appellant’s Arguments
The Examiner concludes that the claims recite an abstract idea,
specifically certain methods of organizing human activity. Ans. 7; Final
Act. 2 (citing Non-Final Act. 3 mailed March 22, 2018). The Examiner
further concludes that the abstract idea is not integrated into a practical
application, because the additional elements of processor, network interface,
and electronic market place are generic computer components that do not
impose meaningful limits on practicing the abstract idea. Ans. 7. The
Examiner also determines the present claims do not amount to significantly
more than an abstract idea itself because the abstract idea is implemented
using additional elements that are well-understood, routine, and
conventional. Final Act. 2 (citing Non-Final Act. 5 mailed March 22, 2018
(citing Spec. ¶¶ 79–88)); Ans. 12 (citing Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1321 (Fed. Cir. 2016); In re TLI Commc’ns
LLC Patent Litigation, 823 F.3d 607, 610 (Fed. Cir. 2016); OIP
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Technologies, Inc. v. Amazon.com, Inc., 788 F.3d 1359 (Fed. Cir. 2015);
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed. Cir. 2014).
Appellant argues that the Examiner’s analysis does not consider all
claim limitations, which describes various technological improvements to
the user interface. Appeal Br. 10–12 (citing Core Wireless Licensing
S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018); Spec. ¶¶ 194–
195). Appellant argues that the Examiner’s analysis is deficient, because it
fails to consider whether claimed requirements of the training data are well-
understood, routine and conventional and completely ignores the technical
advantages discussed in the Specification. Appeal Br. 7 (citing Berkheimer
v. HP Inc., 881 F.3d 1360 (Fed. Cir. 2018); Spec. ¶¶ 194–195). We disagree
with Appellant.
D. Step 2A, Prong 1
Patent eligibility under 35 U.S.C. § 101 is a question that we resolve
pursuant to the 2019 Revised Guidance. The emphasized portions of claim
29,5 reproduced above (see supra at 2–3), recite concepts relating to
fundamental economic principles or practices because they require a
plurality of users participating in an auction for trading products (see
Priceplay.com, Inc. v. AOL Advert., Inc., 83 F. Supp. 3d 577, 580 (D. Del.
2015), aff’d, 627 F. App’x 925 (Fed. Cir. 2016) (Rule 36)), and, therefore,
fall within the certain methods of organizing human activity category of the
USPTO’s Guidance. See 2019 Revised Guidance, 84 Fed. Reg. at 52 n.14.
Specifically, the italicized steps fall under the umbrella of economic

5 Claim 29 is representative, as acknowledged by Appellant. Appeal Br. 10.
We, therefore, group claims 1–5, 7–12, 17–20, 24, 26, 29, and 31 as the
“present claims.”
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practices, including managing transactions or sales activities, because
participating in an auction would ordinarily take place in our system of
commerce.
We must still determine whether the abstract idea is integrated into a
practical application, namely whether the claim applies, relies on, or uses the
abstract idea in a manner that imposes a meaningful limit on the abstract
idea, such that the claim is more than a drafting effort designed to
monopolize the abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at
54–55. We therefore (1) identify whether there are any additional recited
elements beyond the abstract idea, and (2) evaluate those elements both
individually and collectively to determine whether they integrate the
exception into a practical application. See id.
Accordingly, we proceed to Prong 2.

E. Step 2A, Prong 2
Here, the only elements in the claims beyond the abstract idea are
“processor,” “electronic marketplace,” “display device,” “electronic
communication network,” “first electronic device,” “graphical user
interface,”6 and “memory.”7 See 2019 Revised Guidance, 84 Fed. Reg. at
52. The additional elements of the present claims do not integrate the
abstract idea into a practical application because they do not impose any
meaningful limits on practicing the abstract idea for the following reasons.
Appellant does not identify persuasively how the Specification sets

6 This additional element and the preceding additional elements are recited
in claims 1, 29, and 31. See Claims App.
7 This additional element is recited only in claim 29. See Claims App.
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forth an improvement in technology. Appeal Br. 10–12 (citing Core
Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir.
2018); Spec. ¶¶ 194–195). The October 2019 Update addresses how we
consider evidence of improvement that is presented to us. The Update
states:
[T]he evaluation of Prong Two requires the use of the
considerations (e.g. improving technology, effecting a particular
treatment or prophylaxis, implementing with a particular
machine, etc.) identified by the Supreme Court and the Federal
Circuit, to ensure that the claim as a whole “integrates [the]
judicial exception into a practical application [that] 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.
Update, 11 (emphases added). The Update further states:
During examination, the examiner should analyze the
“improvements” consideration by evaluating the specification
and the claims to ensure that a technical explanation of the
asserted improvement is present in the specification, and that the
claim reflects the asserted improvement. Generally, examiners
are not expected to make a qualitative judgment on the merits of
the asserted improvement. If the examiner concludes the
disclosed invention does not improve technology, the burden
shifts to applicant to provide persuasive arguments supported by
any necessary evidence to demonstrate that one of ordinary skill
in the art would understand that the disclosed invention improves
technology. Any such evidence submitted under 37 C.F.R.
§ 1.132 must establish what the specification would convey to
one of ordinary skill in the art and cannot be used to supplement
the specification. For example, in response to a rejection under
35 U.S.C. § 101, an applicant could submit a declaration under
§ 1.132 providing testimony on how one of ordinary skill in the
art would interpret the disclosed invention as improving
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technology and the underlying factual basis for that conclusion.
Id. at 13 (emphasis added).
Here, the Examiner concludes that the additional elements, when
considered individually and as an ordered combination, do not integrate the
abstract idea into a practical application because the additional elements are
generic computer components that do not impose meaningful limits on
practicing the abstract idea. Ans. 7–8. Furthermore, the Examiner
concludes, and we agree, that the claims are directed to improvements to an
abstract idea (i.e., certain methods of organizing human activity), rather than
to improvements to a technology or technological field. Id.
Moreover, “a claim for a new abstract idea is still an abstract idea.”
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016) (emphasis added). “[U]nder the Mayo/Alice framework, a claim
directed to a newly discovered law of nature (or natural phenomenon or
abstract idea) cannot rely on the novelty of that discovery for the inventive
concept necessary for patent eligibility . . . .” Genetic Techs. Ltd. v. Merial
L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016) (citations omitted).
We also turn our focus to any evidence Appellant cites, as discussed
in the Update. Appellant refers us to paragraphs 194 and 195 of the
Specification as alleged evidence of an improvement to a technology or
technological field. Appeal Br. 10–12 (citing Spec. ¶¶ 194–195). However,
paragraphs 194 and 195 of the Specification merely discuss a user interface
module for tailoring user preferences pertaining one or more trading
products, counterparties, auction preferences, and other preferences (i.e.,
certain methods of organizing human activity, which is an abstract idea).
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Appellant’s citation to Core Wireless is unavailing. Appeal Br. 10–
12. In Core Wireless, the court noted that the invention improved the
efficiency of using an electronic device by consolidating “‘a limited list of
common functions and commonly accessed stored data,’ which can be
accessed directly from the main menu.” Core Wireless, 880 F.3d at
1363. Moreover, displaying selected data or functions of interest in the
summary window allowed the user to view the most pertinent data or
functions “without actually opening the application [window] up.” Id. at
1367 (emphasis omitted). Stated differently, the application window is in an
un-launched state. Id. In addition, the user’s navigation speed through
various views and windows is improved because it saves the user from
having to navigate to the required application, open the application, and then
navigate within that application to enable the data of interest to be seen or a
function of interest to be activated. Id. Unlike the claims of Core Wireless,
the present claims do not recite displaying an application summary window
that was not only reachable directly from the main menu, but could also
display a limited list of selectable functions while the application was in an
un-launched state or an improvement in the functioning of computers. Nor
are we persuaded that the Specification discloses technological advances
over the prior art. Appeal Br. 10–12 (citing Spec. ¶¶ 194–195). As
discussed above, the claims are directed to an abstract idea, rather than an
improvement to the underlying computer technology or to any of the
additional elements.
Furthermore, the additional elements in the present claims, namely
“processor,” “electronic marketplace,” “display device,” “electronic
communication network,” “first electronic device,” “graphical user
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interface,” and “memory” do not, either individually or in combination,
integrate the abstract idea into a practical application. Appellant’s
Specification discloses that these elements encompass generic components,
such as processor (Spec. ¶¶ 79, 81, 99), electronic marketplace (Spec. ¶¶ 12,
132, 148), display device (Spec. ¶ 194), electronic communication network
(Spec. ¶¶ 88, 91, 148), first electronic device (Spec. ¶ 82), graphical user
interface (Spec. ¶¶ 193–194), and memory (Spec. ¶ 86). Merely adding
generic computer components to perform abstract ideas does not integrate
those ideas into a practical application. See 2019 Revised Guidance, 84 Fed.
Reg. at 55 (identifying “merely includ[ing] instructions to implement an
abstract idea on a computer” as an example of when an abstract idea has not
been integrated into a practical application).
Appellant does not make any other arguments pertaining to Step 2A,
Prong 2. Because the present claims recite an abstract idea that is not
integrated into a practical application, we proceed to Step 2B.
F. Step 2B
We agree with the Examiner that the additional elements, either
individually or in combination, do not amount to an inventive concept. Ans.
7–8. An inventive concept “cannot be furnished by the unpatentable law of
nature (or natural phenomenon or abstract idea) itself.” Genetic, 818 F.3d at
1376; see also 2019 Revised Guidance; Alice, 573 U.S. at 217 (explaining
that, after determining a claim is directed to a judicial exception, “we then
ask, ‘[w]hat else is there in the claims before us?”’ (alteration in original)
(quoting Mayo, 566 U.S. at 78)). Instead, an “inventive concept” is
furnished by an element or combination of elements that is recited in the
claim in addition to the judicial exception and sufficient to ensure the claim
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as a whole amounts to significantly more than the judicial exception itself.
Alice, 573 U.S. at 218–19 (citing Mayo, 566 U.S. at 72–73); see BSG Tech
LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018) (explaining
that the Supreme Court in Alice “only assessed whether the claim limitations
other than the invention’s use of the ineligible concept to which it was
directed were well-understood, routine and conventional” (emphasis
added)).
We agree with the Examiner’s determination that the present claims
recite an abstract idea implemented using additional elements that are well-
understood, routine, and conventional. Final Act. 2 (citing Non-Final Act. 5
mailed March 22, 2018 (citing Spec. ¶¶ 79–88)); Ans. 12 (citing Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d at 1321; In re TLI Commc’ns
LLC Patent Litigation, 823 F.3d at 610; OIP Technologies, Inc. v.
Amazon.com, Inc., 788 F.3d 1359; buySAFE, Inc. v. Google, Inc., 765 F.3d
1350. The Specification supports the Examiner’s determination in this
regard, because it explains that processor, electronic marketplace, display
device, electronic communication network, first electronic device, graphical
user interface, and memory are generic computer components. Spec. ¶¶ 12,
79, 81, 82, 86, 88, 91, 99, 132, 148, 193, 194. Appellant’s Specification
indicates these additional elements were well-understood, routine, and
conventional components because it describes them at a high level of
generality and in a manner that indicates that they are sufficiently well-
known.
We disagree with Appellant’s argument that the Examiner’s finding
that the additional elements are well-understood, routine, and conventional
ignores technical advantages discussed in the Specification. Appeal Br. 7
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(citing Berkheimer v. HP Inc., 881 F.3d 1360; Spec. ¶¶ 194–195). As
discussed supra, paragraphs 194 and 195 of the Specification merely discuss
a user interface module for tailoring user preferences pertaining one or more
trading products, counterparties, auction preferences, and other preferences
(i.e., certain methods of organizing human activity, which is an abstract
idea).
For at least the above reasons, we conclude, under the 2019 Revised
Guidance, that each of the present claims, considered as a whole, is directed
to a patent-ineligible abstract idea that is not integrated into a practical
application, and does not include an inventive concept. We therefore sustain
the Examiner’s rejection of claims 1–5, 7–12, 17–20, 24, 26, 29, and 31
under 35 U.S.C. § 101.
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 1.136(a)(1)(iv).

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–5, 7–12,
17–20, 24,
26, 29, 31
101 Eligibility 1–5, 7–12,
17–20, 24,
26, 29, 31

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AFFIRMED