Ex Parte Browne et alDownload PDFPatent Trial and Appeal BoardMar 20, 201713593949 (P.T.A.B. Mar. 20, 2017) Copy Citation 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. 13/593,949 08/24/2012 Sid Browne GOLDl 1-00018 2388 132787 7590 Docket Clerk-GOLD P.O. Drawer 800889 Dallas, TX 75380 EXAMINER SUBRAMANIAN, NARAYANSWAMY ART UNIT PAPER NUMBER 3695 NOTIFICATION DATE DELIVERY MODE 03/22/2017 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): j ohn. maxin @ gs. com patents @ munckwilson. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SID BROWNE and ARTHUR MAGHAKIAN Appeal 2015-007626 Application 13/593,949 Technology Center 3600 Before HUBERT C. LORIN, BIBHU R. MOHANTY, and BRADLEY B. BAYAT, Administrative Patent Judges. BAYAT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. § 134 from the decision rejecting claims 15â25 and 35â43. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. 1 Our decision references Appellantsâ Appeal Brief (âAppeal Br.,â filed Apr. 2, 2015) Reply Brief (âReply Br.,â filed Aug. 18, 2015), the Examinerâs Answer (âAns.,â mailed June 18, 2015), and Final Office Action (âFinal Act.,â mailed Dec. 2, 2014). 2 Appellants identify âGoldman, Sachs & Co.â as the real party in interest. Appeal Br. 2. Appeal 2015-007626 Application 13/593,949 THE INVENTION Appellantsâ claimed invention relates to measuring market and credit risk (Spec. 1:14). Claims 15 and 35, reproduced below with bracketed matter added, are illustrative of the subject matter on appeal. 15. A computer-implemented method for simulating volatility of a basket of individual derivative instruments comprising: [1] receiving, at computing device having a processor, historical financial data related to a plurality of individual derivative instruments; [2] deriving, using the processor, an individual surface parameter for each the plurality of individual derivative instruments from the historical financial data, wherein each of the individual surface parameters represents a measure of volatility for each of the individual derivative instruments; [3] determining, using the processor, surface parameters for a surface volatility model of the basket of individual derivative instruments by combining the individual surface parameters; [4] simulating, using the processor, changes in prices of the basket of individual derivatives instruments by evolving over time the surface parameters for the surface volatility model of the basket of individual derivative instruments; and [5] displaying, at the computing device, a pricing matrix illustrating the changes in prices of the basket of individual derivatives over the time simulated. 35. A system for simulating volatility of a basket of individual derivative instruments comprising: [1] means for receiving historical financial data related to a plurality of individual derivative instruments; [2] means for deriving an individual surface parameter for each the plurality of individual derivative instruments from the historical financial data, wherein each of the individual surface 2 Appeal 2015-007626 Application 13/593,949 parameters represents a measure of volatility for each of the individual derivative instruments; [3] means for determining surface parameters for a surface volatility model of the basket of individual derivative instruments by combining the individual surface parameters; [4] means for simulating changes in prices of the basket of individual derivatives instruments by evolving over time the surface parameters for the surface volatility model of the basket of individual derivative instruments; and [5] means for displaying a pricing matrix illustrating the changes in prices of the basket of individual derivatives over the time simulated. THE REJECTIONS The Examiner relies upon the following as evidence of unpatentability: Garman Amberson et al. Penello Browne et al. (âthe â310 patentâ) US 5,819,237 US 2004/0039673 Al US 2009/0006270 Al US 8,255,310 B2 Oct. 6, 1998 Feb. 26, 2004 Jan. 1, 2009 Aug. 28, 2012 The following rejections are before us for review: I. Claims 15â25 and 35â43 stand rejected under 35 U.S.C. § 112, first paragraph, for lack of written description support. II. Claims 15â25 and 35â43 stand rejected under 35 U.S.C. § 112, second paragraph, as being indefinite. III. Claims 15â25 and 35â43 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. 3 Appeal 2015-007626 Application 13/593,949 IV. Claim 15 stands rejected under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claim 1 of the â310 patent, Applicant Admitted Prior Art, and Official Notice/Penello. V. Claims 15â25 and 35â43 stand rejected under 35 U.S.C. § 103 as being unpatentable over Garman, Applicant Admitted Prior Art, and Official Notice/Penello. VI. Claims 15â25 and 35â43 stand rejected under 35 U.S.C. § 103 as being unpatentable over Amberson, Applicant Admitted Prior Art, and Official Notice/Penello. ANALYSIS Rejection I - Written Description The Examiner finds that the Specification does not provide support for the âdisplayingâ limitations in claims 15 and 35 (Final Act. 2âA\ Ans. 3â5). Appellants argue that âFig. 5 clearly illustrated a simulated option price matrix while page 23 discusses a computer implementation which would include a display for showing the results of a simulation.â (Appeal Br. 5). Appellants also cite pages 15 and Figures 2 and 3 of the Specification for support (Reply Br. 3). Whether a specification complies with the written description requirement of 35 U.S.C. § 112, first paragraph, is a question of fact and is assessed on a case-by-case basis. See, e.g., Purdue Pharma L.P. v. Faulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) (citing Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1561 (Fed. Cir. 1991)). The disclosure, as 4 Appeal 2015-007626 Application 13/593,949 originally filed, need not literally describe the claimed subject matter (i.e., using the same terms or in haec verba) in order to satisfy the written description requirement. But the Specification must convey with reasonable clarity to those skilled in the art that, as of the filing date, Appellants were in possession of the claimed invention. See id. Although the Specification does not explicitly refer to the term âdisplaying,â a person of ordinary skill in the art reviewing Appellantsâ Figure 5, which depicts the simulated option price matrix, would reasonably understand that a computer includes a display, and would have known that Appellants were in possession of the claimed subject matter as of the filing date. Accordingly, we do not sustain the written description rejection. Rejection IIâIndefiniteness Claims 15â25 We are persuaded by Appellantsâ argument that the Examiner erred in rejecting claims 15â25 under 35 U.S.C. § 112, second paragraph (Appeal Br. 7â8), and, therefore, we do not sustain the rejection of claims 15â25 as indefinite. The Examiner determines that the limitation in claims 15 and 35 of âevolving over time the surface parameters for the surface volatility modelâ is indefinite (Final Act. 5; Ans. 5). The Examiner also rejected dependent claim 20 as being indefinite because of the phrase âtranslating the historical data before using the regression analysisâ and claim 22 as being indefinite because of the phrase âevolving over time the surface parameters.â (Id.). 5 Appeal 2015-007626 Application 13/593,949 However, we agree with Appellants that the terms âevolvingâ and âtranslatingâ are used in accordance with their ordinary meaning (Reply Br. 5) (citing Appellantâs Specification at pages 5, 12, 14, 15, 17, and 30 and Figure 4). Here, a person of ordinary skill in the art reviewing the Specification would understand what is claimed. Thus, we do not sustain the rejection of claims 15â25 under 35 U.S.C. §112, second paragraph. Claims 35â43 The Examiner rejected claims 35â43 under 35 U.S.C. § 112, second paragraph as being indefinite because the â[Specification does not provide sufficient description of corresponding structures to perform the claimed functionsâ which the Examiner has interpreted under 35 U.S.C. § 112, sixth paragraph. Claim 35 recites five âmeans forâ limitations, including â[1] means for receiving, â[2] means for deriving,â â[3] means for determining,â â[4] means for simulating,â and â[5] means for displayingâ (Appeal Br. 24â25, Claims Appendix).3 Appellants do not dispute the Examinerâs interpretation of these five limitations under 35 U.S.C. § 112, sixth paragraph (Reply Br. 6). Appellants argue that sufficient structure for these limitations is disclosed in the Specification at page 23, lines 9â19, Equations 1â23, and Figures 4 and 5 (Appeal Br. 9). According to Appellants, âpage 23 is clear that âthe various 3 We note that Appellants incorrectly identify claim 35 as claim â36â in the Claims Appendix. See App. Br. 24, Claim App. 6 Appeal 2015-007626 Application 13/593,949 method steps [can be performed] on a high-power computing platform.ââ (Appeal Br. 9). Appellants argument is unpersuasive because âin a means-plus- function claim âin which the disclosed structure is a computer, or microprocessor, programmed to carry out an algorithm, the disclosed structure is not the general purpose computer, but rather the special purpose computer programmed to perform the disclosed algorithmââ Aristocrat Techs. Australia PtyLtd. v. Intâl Game Tech., 521 F.3d 1328, 1333 (Fed. Cir. 2008) (quoting IVMS Gaming, Inc. v. International Game Technology, 184 F.3d 1339 (Fed.Cir. 1999)). Here, page 23 of the Specification merely discloses âappropriate software routines which are configured to perform the various method steps on a high-power computing platformâ and states that â[appropriate programming techniques will be known to those of skill in the art,â but no specific software algorithm or programming technique is disclosed. Cf. Aristocrat Techs. 521 F.3d at 1334 (ââappropriate programmingâ imposes no limitation whateverâ). See also Ex Parte Rodriguez, 92 USPQ2d 1395 (BPAI 2009). Appellantsâ argument that âthe application is replete with specific implementation details, equations (see, e.g., equations 1â23), and flows for implementing the operations set forth in the elementsâ (Appeal Br. 9; Reply Br. 7) is similarly unpersuasive. Mathematical equations are not software algorithms. See Aristocrat Techs. 521 F.3d at 1334. (â[T]he equation is not an algorithm that describes how the function is performed, but is merely a mathematical expression that describes the outcome of performing the function.â). Figure 4 merely depicts rectangles that contain functional 7 Appeal 2015-007626 Application 13/593,949 language. Figure 5 depicts various matrices and parameters in conjunction with functional language, but does not actually show how the claimed functions are implemented in software. Appellants further argue that âone skilled in the art will understand what structure (or material or acts) will perform the recited functionsâ (Reply Br. 7). That may be true, but it does not apprise us of error in the rejection of claim 35. Cf. Aristocrat Techs. 521 F.3d at 1334 (âAristocratâs real point is that devising an algorithm to perform that function would be within the capability of one of skill in the art, and therefore it was not necessary for the patent to designate any particular algorithm to perform the claimed function. As we have noted above, however, that argument is contrary to this courtâs law.â). Accordingly, we sustain the rejection of claims 35â43 under 35 U.S.C. § 112, second paragraph. Rejection III - Non-statutory Subject Matter Appellantsâ challenge to the rejection under § 101 fails to show reversible error by the Examiner. The Examiner analyzed the claims in accordance with the two-step framework for determining whether claimed subject matter is judicially- excepted from patent eligibility under § 101 as articulated in Alice Corp. Pty. Ltd. v. CLS Bank International, 134 S. Ct. 2347 (2014). See Final Act. 6â9; Ans. 27â33. In accordance therewith, the Examiner determined that claim 15 âis directed to simulating volatility of a basket of individual derivative instrumentsâ and âsuch activity is considered both a fundamental 8 Appeal 2015-007626 Application 13/593,949 economic practice and a method of organizing human activityâ (Final Act. 7). Under step 2 of the Alice framework, the Examiner found that the claimed âelements involved in the recited process undertake their roles in performance of their activities according to their generic functionalities which are well-understood, routine and conventionalâ (Final Act. 8; see also Ans. 7â10). According to the Examiner, the claims are directed to âusing mathematical relationships/formulas to simulate volatility of a basket of individual derivative instruments.â (Ans. 8). From this, the Examiner determined that the claimed subject matter runs afoul of35U.S.C. § 101. Appellants contend that the claimed invention is not directed to an abstract idea under step 1 of Alice (Appeal Br. 11â14) and that the claims are directed to significantly more than an abstract idea under Alice step 2 (Appeal Br. 14â16). The Specification describes the invention as âa method and system for measuring market and credit risk and, more particularly, to an improved method for the simulating the evolution of a volatility surface for basket and other multi-component options for use in simulating the performance of the basket option.â (Spec, at 1, lines 15â18). Independent claim 15 is directed to a âcomputer-implemented method for simulating volatility of a basket of individual derivative instrumentsâ (Appeal Br. 25, Claims Appendix). Independent claim 35 is directed to a corresponding âsystem for simulating volatility of a basket of individual derivative instrumentsâ (Appeal Br. 29, Claims Appendix). The method of claim 15 comprises five steps of (a) receiving a first information (âhistorical financial dataâ), (b) deriving a second information 9 Appeal 2015-007626 Application 13/593,949 (âan individual surface parameterâ), (c) determining a third information (âsurface parameters for a surface volatility modelâ), (d) simulating a fourth information (âchanges in pricesâ), and (e) displaying fifth information (âdisplaying a pricing matrix illustrating the changes in pricesâ). The system of claim 35 comprises five âmeans forâ performing functions that correspond to steps (a) through (e) of claim 15. The subject matter of claims 15 and 35, as reasonably broadly construed, are drawn to a mathematical simulation of price changes for a financial instrument derivative; that is, the claims are drawn to a methodology whereby mathematical formula are applied to information about a derivative on an underlying financial instrument to create a mathematical model and generate a price for a particular derivative from the model that measures, and thus protects against, âthe potential risk of future losses which is inherent in a given financial positionâ (Spec, at 1, lines 21â 22). Evidence will show that the concept of determining prices for financial instruments is a well-established fundamental economic practice. Because we find that claims 15 and 35, as reasonably broadly construed, are directed to the concept of financial instrument pricing according to mathematical formulas, i.e., a fundamental economic practice, claims 15 and 35 are directed to a patent-ineligible abstract idea. Appellants argue that â[t]he claims address a business challenge by, among other things, simulating changes in prices of baskets of individual derivatives in a very specific way that reduces the computational demands when compared to traditional techniquesâ (Appeal Br. 13; Reply Br. 8â9) (citing pages 4â5 of the Specification). According to Appellants, âthe 10 Appeal 2015-007626 Application 13/593,949 claims provide improvements in the field of derivative pricing using specific, non-generic, computer functions to make a pricing determination in specific waysâ (Appeal Br. 15) and the claimed invention is rooted in computer technology like the inventions held eligible in Research Corp. Techs, v. Microsoft Corp., 627 F.3d 859 (Fed. Cir. 2010), and DDR Holdings, LLCv. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) (Appeal Br. 12-13; see also Reply Br. 8â10). Although the Specification criticizes prior simulation techniques because âthe computational cost of determining the cross-correlations grows quadradically with the number of factors making it difficult to process models with large numbers of factorsâ (Spec, at 4, lines 10-12), the Specification does not disclose a technological solution to that problem. Here, â[t]he specification fails to provide any technical details for the tangible components, but instead predominately describes the system and methods in purely functional terms.â In re TLI Commc âns LLC Patent Litig., 823 F.3d 607, 612 (Fed. Cir. 2016). Appellants have not offered any evidence that the computer implementation is novel or improves the functioning of the computer itself. Appellantsâ disclosure supports the view that the computer implementation is entirely conventional. The Specification does not describe a new computing platform, processor, memory, database, or new software routines. Rather, the Specification describes a conventional computer implementation in purely functional terms, as to hardware and software alike. See, e.g., Spec, at 23, lines 9â11 (âA preferred method of implementation uses a set of appropriate software routines which are configured to perform the various 11 Appeal 2015-007626 Application 13/593,949 method steps on a high-power computing platformâ); Spec, at 23, lines 14â 15 (âAppropriate programming techniques will be known to those of skill in the art and the particular techniques used depend upon implementation details, such as the specific computing and operating system at issueâ); Spec, at 23, lines 17â19 (âThe various steps of the simulation method are implemented as C++ classes and the intermediate data and various matrices are stored using conventional file and database storage techniques.â). This is not sufficient to make the invention ârooted in computer technologyâ like the claims in DDR. Cf. Intellectual Ventures ILLC v. Capital One Bank (USA), 792 F.3d 1363, 1371 (Fed. Cir. 2015) (âThe patent claims here do not address problems unique to the Internet, so DDR has no applicability.â). The implementation of the claimed financial instrument simulation using a conventional computer and âappropriate programming techniquesâ to manipulate information does not make the claimed mathematical formulas patent-eligible. â[IJmplementing a mathematical principle on a physical machine, namely a computer, [i]s not a patentable application of that principle.â Mayo, supra, at 1301 (citing Gottschalkv. Benson, 409 U.S. 63, at 71 (1972)). Cf. Alice, 134 S. Ct. at 2358 (âthe mere recitation of a generic computer cannot transform a patent- ineligible abstract idea into a patent-eligible invention.â). See also Digitech Image Techs., LLC v. Elecs. for Imaging, Inc., 758 F.3d 1344, 1351 (Fed. Cir. 2014) (âWithout additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible.â) (citing Flook); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (â[RJelying 12 Appeal 2015-007626 Application 13/593,949 on a computer to perform routine tasks more quickly or more accurately is insufficient to render a claim patent eligible.â) (citing Alice, 134 S. Ct. at 2359). The claimed invention is also readily distinguishable from the blue noise mask in Research Corp. that produced âhigher quality halftone images while using less processor power and memory spaceâ (see Research Corp. 627 F.3d at 865). Here, the claimed invention relates to evaluating volatility and simulating prices for financial instruments. We find the claimed invention here to be more similar to the claims related to economic practices held ineligible in Bilski v. Kappos, 561 U.S. 593, (2010) (concept of hedging risk and the application of that concept to energy markets), OIP Techs., Inc., 788 F.3d at 1359 (automatically determining prices for products by testing prices and gathering statistics) and Versata Development Group v. SAP America, Inc., 793 F.3d 1306 at 1333â34 (Fed. Cir. 2015) (determining a price using organization and product group hierarchies). Appellants argue that âthe technology recited by the claims requires a specific recitation of elementsâ (Appeal Br. 15). According to Appellants, âthe claim goes beyond the mere concept of simply performing a pricing analysis on a computerâ (Appeal Br. 16). We agree with Appellants that the claims require applying specific mathematical functions to specific data. The problem with this argument is that applying specific mathematical formulas to specific data does not make an abstract idea patent-eligible. Each step of the method of claim 15 is directed to gathering and manipulating information according to mathematical formulas. For example, as described in the Specification, 13 Appeal 2015-007626 Application 13/593,949 evolving surface parameters for a surface volatility model in a simulation is fundamentally a mathematical operation. See Spec, at 11, lines 9-12 (âimplied volatility of an option during simulation can be determined by referencing the simulated volatility surface in accordance with the values of T and delta for that option at that point in the simulationâ). The Supreme Court has held that mathematical formulas are not patent-eligible, no matter how narrowly a claim may be drafted. â[I]f a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.â Parker v. Flook, 437 U.S. 584, 595, 98 S. Ct. 2522, 57 L.Ed.2d 451 (1978) (internal quotations omitted). [0]ur cases have not distinguished among different laws of nature according to whether or not the principles they embody are sufficiently narrow. See, e.g., Flook, 437 U.S. 584, 98 S. Ct. 2522, 57 L.Ed.2d 451 (holding narrow mathematical formula unpatentable). And this is understandable. Courts and judges are not institutionally well suited to making the kinds of judgments needed to distinguish among different laws of nature. And so the cases have endorsed a bright-line prohibition against patenting laws of nature, mathematical formulas and the like, which serves as a somewhat more easily administered proxy for the underlying âbuilding-blockâ concern. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 88â89, (2012). Cf. Bilski v. Kappos, 561 U.S. 593, 611 (2010) (âThe concept of hedging, described in claim 1 and reduced to a mathematical formula in claim 4, is an unpatentable abstract idea, just like the algorithms at issue in Benson and ISookC). We also note the point about pre-emption. Appeal Br. 13 (âthere is no concern of a monopolizationâ) (see also Reply Br. 10). While pre-emption 14 Appeal 2015-007626 Application 13/593,949 âmight tend to impede innovation more than it would tend to promote it, âthereby thwarting the primary object of the patent lawsââ {Alice, 134 S. Ct. at 2354 (quoting Mayo, 132 S. Ct. 1289, 1293), âthe absence of complete preemption does not demonstrate patent eligibilityâ (Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)). See also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362-63 (Fed. Cir.), cert, denied, 136 S. Ct. 701, 193 (2015)(â[T]hatthe claims do not preempt all price optimization or may be limited to price optimization in the e- commerce setting do not make them any less abstract.â). See also CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) (âThe Court [in Flook] rejected the notion that the recitation of a practical application for the calculation could alone make the invention patentable.â). Appellants also argue that the Examiner has not provided any evidence in support of the rejection (Appeal Br. 10â11) (citing PNC Bank v. Secure Axcess, LLC (CBM2014-00100), a decision not to institute a covered business method review on § 101 grounds). There is no requirement to make factual findings or produce evidence in making a rejection under 35 U.S.C. § 101. See, e.g., âJuly 2015 Update: Subject Matter Eligibilityâ to the â2014 Interim Guidance on Subject Matter Eligibility (2014 IEG) published on Dec. 16, 2014 (79 Fed. Reg. 74618)â: The courts consider the determination of whether a claim is eligible (which involves identifying whether an exception such as an abstract idea is being claimed) to be a question of law. Accordingly, courts do not rely on evidence that a claimed concept is a judicial exception, and in most cases resolve the 15 Appeal 2015-007626 Application 13/593,949 ultimate legal conclusion on eligibility without making any factual findings. Id. at 6, para. 3 (emphasis added) (footnote omitted). Evidence may be helpful in certain situations where, for instance, facts are in dispute. But it is not always necessary. It is not necessary in this case. We note that Appellants have put forward no rebuttal evidence showing claim 15 is not directed to an abstract idea. Independent system 35 is directed to similar functionality as claim 15, implemented by five âmeans forâ performing the functions, as discussed above. As in Alice, â[t]he method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea.â Alice at 2360. Accordingly, we reach the same conclusion as to system claim 35. Appellants do not provide separate arguments for the dependent claims (see Appeal Br. 16; Reply Br. 10). Accordingly, we sustain the rejection of claims 15â25 and 35â43 under 35 U.S.C. § 101. Rejection IV - Obviousness-type Double Patenting In rejecting claim 15 on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claim 1 of the â310 patent, the Examiner relied on a finding of Applicant Admitted Prior Art for limitation [4] (âsimulatingâ) (Final Act. 10â12; Ans. 11â12). According to the Examiner, âas discussed in the Applicant Admitted Prior Art (AAPA - Background of the invention in the Applicantâs specification), simulating by 16 Appeal 2015-007626 Application 13/593,949 varying the value of the risk factors is old and well known in the artâ (Final Act. 11). Appellants dispute this finding (Appeal Br. 17, 19â20; Reply Br. 11â 12). We have reviewed the cited portions of the Specification, and we agree with Appellants that the Examinerâs finding for limitation [4] as Applicant Admitted Prior Art was improper. Page 3 of the Specification describes two simulation techniques as conventional (â[i]n general financial simulations, two simulation techniques are conventionally used: parametric simulation and historical simulationâ). However, the Specification does not describe as conventional the âsimulatingâ step of limitation [4] namely, âsimulating, using the processor, changes in prices of the basket of individual derivatives instruments by evolving over time the surface parameters for the surface volatility model of the basket of individual derivative instruments.â Accordingly, we do not sustain the rejection of claim 15 under the judicially created doctrine of obviousness-type double patenting. Rejections V & VI - Obviousness We do not sustain the rejections of claims 15â25 and 35â43 under 35 U.S.C. § 103 because both rejections rely on the same erroneous finding for limitation [4] as discussed above (see Final Act. 14, 18; Ans. 12, 18). 17 Appeal 2015-007626 Application 13/593,949 DECISION Rejections I, II (as to claims 15â25), IV, V, and VI are REVERSED. Rejections II (as to claims 35â43), and III are AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 18 Copy with citationCopy as parenthetical citation