Ex Parte Noviello

Patent Trial and Appeal Board

Aug 31, 2018

14280119 (P.T.A.B. Aug. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/280,119 05/16/2014
63710 7590 09/05/2018
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
FIRST NAMED INVENTOR
Joseph C. Noviello
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
08-6429-CIP1-C4 2560
EXAMINER
NGUYEN, TIEN C
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
09/05/2018 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):
patentdocketing@cantor.com
lkorovich@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 JOSEPH C. NOVIELLO
Appeal 2016-008706 1
Application 14/280, 1192
Technology Center 3600
Before MURRIEL E. CRAWFORD, ROBERT J. SILVERMAN, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
FINAMORE, Administrative Patent Judge.
DECISION ON APPEAL
1 Our Decision references the Specification filed May 16, 2014 ("Spec."),
Appeal Brief filed June 16, 2016 ("Appeal Br."), and Reply Brief filed
September 22, 2016 ("Reply Br.,"), as well as the Examiner's Answer
mailed July 22, 2016 ("Ans.") and Final Office Action mailed July 2, 2015
("Final Act."). The record also includes a transcript of the oral hearing held
on August 16, 2018 ("Tr.").
2 Appellant identifies BGC Partners, Inc. as the real party in interest.
Appeal Br. 2.
Appeal2016-008706
Application 14/2 80, 119
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner's decision to reject claims 32-39 and 41-51. 3 We have
jurisdiction under § 6(b ).
We AFFIRM.
SUBJECT MATTER ON APPEAL
The invention relates to trading orders with decaying reserves. Spec.,
Title. Claims 32, 46, and 51 are the independent claims on appeal.
Independent claim 32, reproduced below, is illustrative of the claimed
subject matter:
32. An apparatus comprising:
at least one processor; and
at least one memory communicatively coupled to the at
least one processor, the at least one memory having instructions
stored thereon which are configured to, when executed by the at
least one processor, direct the at least one processor to:
receive from a trader at a first time a trading order
for a particular quantity of a trading product, in which a
first portion of the particular quantity is a displayed
quantity, and a second portion of the particular quantity is
a reserved quantity, in which the second portion is of the
particular quantity is greater than zero, and in which a
decay rule is associated with at least one of the trader, the
trading order, and the trading product;
3 Concurrent with the Appeal Brief, Appellant filed an amendment canceling
claim 52. Amendment filed June 16, 2016. The Examiner has entered this
Amendment. Advisory Action mailed June 29, 2016. Accordingly, claim
52 is not before us on appeal, which is consistent with Appellant's
understanding of the claims on appeal (Appeal Br. 2).
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disclose the displayed quantity of the trading order
to one or more market centers; and
reduce the reserved quantity in accordance with the
decay rule without changing the displayed quantity of the
trading order.
REJECTIONS
The Examiner rejects the claims on appeal as follows:
claims 32-39 and 41-51 under 35 U.S.C. § 101 as directed to
non-statutory subject matter; 4 and
claims 32, 46, and 51 on the ground of non-statutory double patenting
as unpatentable over claims 2 and 12 of U.S. Patent No. 8,732,053 B2 ("the
'053 patent") and claim 25 of U.S. Patent No. 7,716,122 B2 ("the
'122 patent").
ANALYSIS
35 USC§ 101
An invention is patent eligible if it is a "new and useful process,
machine, manufacture, or composition of matter." 35 U.S.C. § 101. The
Supreme Court, however, has long interpreted § 101 to include an implicit
exception: "[l]aws of nature, natural phenomena, and abstract ideas are not
patentable." See, e.g., Alice Corp. Pty. Ltd. v. CLS Bank Int 'l, 134 S. Ct.
4 Instead of claims 32-39 and 41-51, Appellant's Briefs indicate claims 32-
40 and 42-51 are subject to this rejection. Appeal Br. 5, 6; Reply Br. 3. As
set forth in the Claims Appendix of the Appeal Brief, however, claim 40 has
been canceled, and claim 41 is pending. We, therefore, understand that
Appellant's inclusion of claim 40 and omission of claim 41 to be an
inadvertent error.
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2347, 2354 (2014) (quoting Ass 'nfor Molecular Pathology v. Myriad
Genetics, Inc., 569 U.S. 576, 589 (2013)).
To "distinguish[] patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts," the Supreme Court, in Alice, reaffirmed the
two-step analysis previously set forth in Mayo Collaborative Services v.
Prometheus Laboratories, Inc., 566 U.S. 66 (2012). Alice, 134 S. Ct. at
2355. The first step of this analysis considers whether a claim is directed to
a patent-ineligible concept, e.g., an abstract idea. Id. (citing Mayo, 566 U.S.
at 77). If so, the second step considers whether the claim recites an
inventive concept-an element or combination of elements sufficient to
ensure the claim amounts to significantly more than the abstract idea and
transform the nature of the claim into a patent-eligible application. Id.
(citing Mayo, 566 U.S. at 72-73, 78, 79).
At the outset, Appellant argues the Examiner's rejection fails to set
forth a prima facie case under 35 U.S.C. § 101. Appeal Br. 6, 13;
Reply Br. 5. Appellant also argues the Examiner has failed to examine each
claim individually. Appeal Br. 11; Reply Br. 4. Appellant's arguments are
not persuasive of error.
The Federal Circuit has explained that "the prima facie case is merely
a procedural device that enables an appropriate shift of the burden of
production." Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing
In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The court has further
explained that the requirement to make a prima facie case is premised on
notice. According to the court,
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the PTO carries its procedural burden of establishing a prima
facie case when its rejection satisfies 35 U.S.C. § 132, in
"notify[ing] the applicant ... [by] stating the reasons for [its]
rejection, or objection or requirement, together with such
information and references as may be useful in judging of the
propriety of continuing the prosecution of [the] application."
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011) (alterations in original)
(quoting§ 132). All that is required of the Office is to set forth the statutory
basis of the rejection in a sufficiently articulate and informative manner. Id.
at 1363; see also Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990)
("Section 132 is violated when a rejection is so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection.").
In determining that the claims are directed to non-statutory subject
matter, i.e., patent ineligible, the Examiner analyzes the claims using the
two-step framework set forth in Alice. Final Act. 2--4. Under the first step,
the Examiner determines the claims are directed to trading orders, which is a
fundamental economic practice and, therefore, an abstract idea. Id. at 3.
Under the second step, the Examiner determines the claims do not recite
significantly more than the abstract idea because they do not include an
improvement to another technology or technical field, an improvement to the
functioning of the computer itself, or meaningful limitations beyond
generally linking the use of the abstract idea to a particular technological
environment. Id. The Examiner also determines the claim limitations are
done by generically recited computing devices and require no more than a
generic computer performing generic computer functions that are
well-understood, routine, and conventional activities previously known to
the industry. Id. Notably, the Examiner explicitly explains that this analysis
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applies to all claims. Ans. 13 ("As the other claims ... are drawn to similar
processes, they suffer from the same infirmity as the representative
claims.").
As such, the Examiner sufficiently informs Appellant that the claims
are patent ineligible. Furthermore, there is no indication that Appellant does
not recognize or understand the Examiner's rejection, as Appellant's
understanding is manifested in the arguments traversing it. The Examiner's
rejection satisfies the notice requirement of§ 132 and sets forth a prima
facie case of patent-ineligible subject matter. We, therefore, consider
Appellant's remaining arguments to determine whether the Examiner erred
in rejecting the claims as patent ineligible. See Ex Parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) (explaining that the Board reviews a
rejection for error "based upon the issues identified by appellant, and in light
of the arguments and evidence produced thereon").
Independent claims 32, 46, and 51
Appellant argues the Examiner has made no showing that these claims
preempt all uses of the abstract idea of trading orders. Appeal Br. 11-12;
Reply Br. 4--5. According to Appellant, the claims are directed to specific
and narrow embodiments and do not preempt all systems and methods for
trading orders. Appeal Br. 12. Appellant's argument does not apprise us of
error. Although preemption may be the basis for excluding abstract ideas
from eligible subject matter, it is not the test for determining whether a claim
is patent eligible. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015) ("The Supreme Court has made clear that the
principle of preemption is the basis for the judicial exceptions to
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patentability .... For this reason, questions on preemption are inherent in
and resolved by the§ 101 analysis." (citation omitted)); see also OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362---63 (Fed. Cir.), cert. denied,
136 S. Ct. 701 (2015) ("And that the 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.").
Appellant also contends the Examiner's determination that the claims
are directed to trading orders is an improper overgeneralization of the claims
that fails to take into account what the claims actually recite. Appeal Br. 7-
8. In particular, Appellant asserts the Examiner's generalized concept does
not recognize that the claims recite reducing a reserved quantity of an order
in accordance with a decay rule without changing the displayed quantity of
the trading order. Id. at 8. Appellant's argument is not convincing because
reducing a reserved quantity of an order in accordance with a decay rule
without changing the displayed quantity of the trading order is a way of
trading orders and further describes the abstract idea of trading orders. This
particular way of trading orders does not separate the claimed invention
from the abstract idea, but simply suggests that the Examiner's
characterization is at a high level of abstraction, which is not persuasive of
error. See Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir.
2016) ("An abstract idea can generally be described at different levels of
abstraction.").
Appellant further contends the Examiner has not compared the
concept of trading orders to other concepts the courts have held to be
abstract ideas. Appeal Br. 12; Reply Br. 5. We disagree. Contrary to
Appellant's assertion, the Examiner determines trading orders is a
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fundamental economic practice (Final Act. 3), which the courts have
routinely held to be an abstract idea. See, e.g., Inventor Holdings, LLC v.
Bed Bath & Beyond, Inc., 876 F.3d 1372, 1379 (Fed. Cir. 2017) ("[T]he
patent claims here are directed to a fundamental economic practice, which
Alice made clear is, without more, outside the patent system."). Indeed,
trading orders is a fundamental economic practice long prevalent in our
system of commerce.
Appellant additionally contends that, like the claims in Core Wireless
Licensing S.A.R.L v. LG Elecs., Inc., 880 F.3d 1356 (Fed. Cir. 2018), the
claimed invention selectively decides what data to display and provides an
improved graphical user interface. Tr. 5. Appellant's argument is not
convmcmg.
In holding that the claims are not directed to an abstract idea, but
instead to an improved user interface for computing devices, the court in
Core "Wireless determined:
Claim 1 of the '4 7 6 patent requires "an application summary that
can be reached directly from the menu," specifying a particular
manner by which the summary window must be accessed. The
claim further requires the application summary window list a
limited set of data, "each of the data in the list being selectable
to launch the respective application and enable the selected data
to be seen within the respective application." This claim
limitation restrains the type of data that can be displayed in the
summarv window. Finallv. the claim recites that the summarv
N J / ..)
window "is displayed while the one or more applications are in
an un-launched state," a requirement that the device applications
exist in a particular state. These 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.
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880 F.3d at 1362----63. The court also detennined that "[t]he specification
confirms that these claims disclose an improved user interface for electronic
devices, paiiicularly those with small screens." Id. at 1363.
In contrast, the claims here recite a processor and memory that
perform the steps of receiving a trading order including a displayed quantity
and a reserved quantity, disclosing the displayed quantity to a market center,
and reducing the reserved quantity in accordance with a decay rule without
changing the displayed quantity. Although the claims recite a "displayed
quantity," the claims do not recite a particular display of information.
Moreover, the Specification does not describe an improvement to the display
of an electronic device. Thus, the claims are not directed to an improved
user interface and are not analogous to the claims in Core fVireless.
Appellant also argues that, like the claims in DDR Holdings, LLC v.
Hotels.com, LJ>., 773 F.3d 1245 (Fed. Cir. 2014), the claims represent a
solution necessarily rooted in computer technology to overcome a problem
specifically arising in an electronic trading system. Appeal Br. 12----13.
According to Appellant:
[The] present claims solve a problem rooted in computer
technology to improve the management of orders in an electronic
trading system to enable greater control over the size of reserve
quantities over time. The claimed solution is necessarily
implemented in a networked computer environment involving
market centers and trading participants who enter orders
electronically and manage order size electronically via a
computer network. The useful improvement of the claimed
invention is endemic to its networked computer environment
having traders and market centers at various network nodes.
Id. at 13.
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The fact that the claimed invention involves a computer network
environment, however, does not mean the claimed solution is necessarily
rooted in computer technology to overcome a problem specifically arising in
the realm of computer networks. Unlike the problem in DDR Holdings of
retaining visitors to a website, which is an Internet-centric challenge
specifically arising in the realm of computer networks (773 F.3d at 1257-
58), the challenge of managing trading orders to enable greater control over
the size of reserve quantities over time is not a challenge unique to electronic
trading systems. Consequently, Appellant's reliance on DDR Holdings does
not apprise us of error.
Appellant further argues the Examiner "has not identified any specific
limitations that are 'generically recited computing devices' or 'generic
computer functions,"' or "provided any explanation for why any specific
limitation does not add significantly more to the alleged abstract idea."
Appeal Br. 9. According to Appellant, the claims recite significantly more
than trading orders, such as, for example, reducing the reserved quantity in
accordance with the decay rule without changing the displayed quantity of
the trading order. Id. at 10. Appellant also asserts that the Examiner has not
rejected the claims over the prior art and therefore "effectively concedes that
the claims must recite significantly more than a 'trading order."' Id.
Appellant's arguments are not convincing.
Although the second step of the Alice analysis is termed a search for
an "inventive concept," the analysis is not an evaluation of novelty or
nonobviousness. Rather, the second step considers "the elements of each
clairn both individually and 'as an ordered combination' to determine
whether the additional elements' tran~fbrm the nature cf the claim' into a
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patent-eligible application." Alice, 134 S. Ct at 2355 (emphasis added)
(quoting kfayo, 566 U.S. at 79, 78). The question in the second step,
therefore, is whether the implementation of the abstract idea involves "more
than performance of 'well-understood, routine, [and] conventional activities
previously known to the indust1y. ''~ Content Extraction & Transmission
LLC v. Wells Fargo Bank, N.A., 776 F.3d 1343, 1347-48 (Fed. Cir. 2014)
(quoting Alice, 134 S. CL at 2359).
Here, Appellant conflates the conventionality of the steps being
performed by computing components and the conventionality of the
computer implementation of the steps. The Examiner determines, and we
agree, that the implementation of the recited steps, including the step of
reducing the reserved quantity in accordance with the decay rule without
changing the displayed quantity, requires nothing more than generic
computer components performing generic computer functions, such as
receiving and processing data. Final Act. 3; see also Spec. ,r 57 ("It will be
readily apparent to one of ordinary skill in the art that the various processes
described herein may be implemented by, e.g., appropriately programmed
general purpose computers, special purpose computers and computing
devices."), ,r 58 ("A 'processor' means one or more microprocessors, central
processing units (CPUs), computing devices, microcontrollers, digital signal
processors, or like devices or any combination thereof, regardless of the
architecture."). The Examiner also determines, and we agree, that the
implementation of the recited steps does not result in an improvement to the
computer environment. Final Act. 3. Accordingly, the implementation of
the abstract idea simply invo 1 ves the performance of generic computer
functions that are well-understood, routine, and conventional such that the
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computer implementation does not transf01111 the nature of the claims into
something other than the abstract idea of trading orders.
~ ~
In view of the foregoing, Appellant does not apprise us of error in the
Examiner's determination that independent claims 32, 46, and 51 are patent
ineligible. Accordingly, we sustain the rejection of independent claims 32,
46, and 51 under 35 U.S.C. § 101.
Claim 33
Claim 33 depends from independent claim 32 and recites "in which
the decay rule specifies a decay rate, and in which the act of reducing the
reserved quantity in accordance with the decay rule comprises reducing the
reserved quantity according to the decay rate." Appeal Br., Claims App.
Appellant argues claim 33 recites significantly more than the abstract idea of
trading orders. Appeal Br. 14. We disagree.
The second step of the Alice framework does not simply consider
whether a claim recites more than the abstract idea. Rather, as set forth
above, the second step considers whether the elements of a claim,
individually and as an ordered combination, transform the nature of a claim
into a patent-eligible application. Alice, 134 S. Ct at 2355 (quoting 1\Jayo,
566 U.S. at 79, 78). Here, the limitations of claim 33 further describe the
abstract idea of trading orders. We agree with the Examiner that the
implementation of these limitations involves nothing more than the
performance of generic computer components performing generic computer
functions that are well-understood, routine, and conventional. Final Act 3.
Consequently, the computer implernentation of the recited fo:nitations of
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claim 33 does not transform the nature of the claim into something other ,._,
than the abstract idea of trading orders. ,__,
In view of the foregoing, Appellant does not apprise us of error in the
Examiner's determination that claim 33 is patent ineligible. Accordingly,
we sustain the rejection of claim 33 under 35 U.S.C. § 101.
Claim 45
Appellant asserts the claimed invention is an improvement to
computers as described in paragraph 88 of the Specification. Tr. 4.
Paragraph 88 explains:
Another advantage 1s that, by causing the reserved
quantity of trading order to decay, the trading system may
improve system efficiency. In particular, as trading orders with
reserved quantities are not aggressed, trading system may
gradually delete the reserved quantities of such trading orders
from one or more order books. Deleting portions of such trading
orders may free up memory and processing resources in the
trading system. Trading system may thereby improve data
throughput and/or conserve system resources.
According to this cited portion of the Specification, improved computer
system efficiency is achieved by deleting reserved quantities that are not
aggressed. Claim 45 recites deleting first and second portions of the
reserved quantity (Appeal Br., Claims App.), and Appellant's argument does
not apprise us of error in the Examiner's rejection of claim 45.
Appellant's Specification explains:
[T]he trading system causes the reserved quantity of the trading
order to decay over time. The trading system may thereby reduce
certain risks associated with market volatility. In particular, by
causing the reserved quantity to decay, the trading system may
reduce the trader's risk of having exposure for a stale trading
order with a price that is no longer favorable for the trader.
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Spec. ,r 87. As Appellant points out, the Specification also explains that the
"trading system may gradually delete the reserved quantities of such trading
orders from one or more order books," and that "[ d]eleting portions of such
trading orders may free up memory and processing resources in the trading
system." Id. ,r 88. As such, the invention causes the reserved quantity of a
trading order to decay, which reduces the trader's risk of having exposure
for a stale trading order, and then deletes the reserved quantities that are not
aggressed. Deleting timeworn information is insignificant post-solution
activity, which is insufficient for patent eligibility. See Diamond v. Diehr,
450 U.S. 175, 191-92 (1981) ("[I]nsignificant post-solution activity will not
transfonn an unpatentab1e principle into a patentable process." (citing
Parker v. Flook, 437 U.S. 584, 598 (1978))).
In view of the foregoing, Appellant does not apprise us of error in the
Examiner's determination that claim 45 is patent ineligible. Accordingly,
we sustain the rejection of claim 45 under 35 U.S.C. § 101.
Claims 34-39, 41-44, and 46-50
Appellant argues these claims recite significantly more than the
abstract idea of trading orders. Appeal Br. 14. Appellant, however, does not
explain why the limitations of these claims amount to significantly more
than the abstract idea, apart from simply asserting that the limitations, either
alone or in combination with other claim limitations, recite significantly
more. Id. Appellant's conclusory assertion is not persuasive of error, and
we sustain the rejection of claims 34--39, 41--44, and 46-50 under 35 U.S.C.
§ 101.
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Non-Statutory Double Patenting
Appellant argues the Examiner's rejection is incomplete and lacks the
requisite analysis. Appeal Br. 14--16. Appellant's argument is persuasive.
In rejecting independent claims 32, 46, and 51 on the ground of
non-statutory double patenting, the Examiner determines that these claims
are not patentably distinct from claims 2 and 12 of the '053 patent and
claim 25 of the '122 patent "because they both disclose that the displayed
quantity of the trading order is disclosed to one or more market centers and
reduce the reserved quantity in accordance with the decay rule without
changing the displayed quantity of the trading order." Final Act. 5.
According to the Examiner, the rejection is proper because it includes the
appropriate form paragraphs for non-statutory double patenting of the
obviousness type. Ans. 20.
The key question in any obviousness double patenting analysis is:
"Does any claim in the application define merely an obvious variation of an
invention claimed in the patent asserted as supporting double
patenting?" General Foods Corp. v. Studiengesellschaft Kahle mbH, 972
F.2d 1272, 1278 (Fed. Cir. 1992) (discussing In re Vogel, 422 F.2d 438
(CCPA 1970)). An analysis analogous to an obviousness analysis under
35 U.S.C. § 103(a) comes into play during the step of determining the
obviousness of the "difference" between the claimed invention and the
patented invention. Studiengesellschaft Kahle mbH v. N. Petrochemical Co.,
784 F.2d 351, 355 (Fed. Cir. 1986); In re Langi, 759 F.2d 887, 892-93
(Fed. Cir. 1985).
As Appellant points out, the Examiner does not provide an
obviousness analysis. Appeal Br. 15-16. For example, the Examiner does
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not determine the differences between the scope and content of independent
claims 32, 46, and 51 and the patented claims, nor does the Examiner
provide reasons why a person of ordinary skill would conclude that the
invention set forth in each independent claim would have been an obvious
variation of the invention set forth in the patented claim. As such, the
Examiner's rejection is incomplete.
Being that the Examiner's rejection is incomplete, the Examiner fails
to sufficiently notify Appellant of the reasons for the rejection on the ground
of non-statutory double patenting of the obviousness type, and, thus, has not
established a prima facie case. In re Jung, 637 F.3d at 1362. Accordingly,
we do not sustain the Examiner's rejection of independent claims 32, 46, and
51 on the ground of non-statutory double patenting.
DECISION
The Examiner's decision to reject claims 32-39 and 41-51 under
35 U.S.C. § 101 is affirmed.
The Examiner's decision to reject claims 32, 46, and 51 on the ground
of non-statutory double patenting is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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