Ex Parte Studnitzer et al

Patent Trial and Appeal Board

Jan 30, 2018

10874561 (P.T.A.B. Jan. 30, 2018)

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.
10/874,561 06/22/2004 Ari Studnitzer 006119.00018 8499
30756 7590 02/01/2018
BANNER & WITCOFF, LTD.,
ATTORNEYS FOR CLIENT NO. 006119
10 SOUTH WACKER DRIVE
SUITE 3000
CHICAGO, IL 60606
EXAMINER
SEE, CAROL A
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
02/01/2018 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):
PTO-30756 @ bannerwitcoff. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARI STUDNITZER, DENNIS GENETSKI,
BART HRVATIN, and SESHARDRI SUNDARAM
Appeal 2016-007052
Application 10/874,561
Technology Center 3600
Before THU A. DANG, JAMES W. DEJMEK, and JOHN D. HAMANN,
Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1 and 4—13, which constitute all claims pending
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2016-007052
Application 10/874,561
STATEMENT OF THE CASE
According to Appellants, the claimed invention relates to “systems,
methods and user interfaces that are utilized in connection with the trading
of financial instruments,” and more particularly, to “mechanisms for
distributing and displaying snapshots of market data and trade data
representing trades that have occurred since the last snapshot.” Spec. 11.
Claim 1, illustrative of the invention and the subject matter of the appeal,
reads as follows:
1. A non-transitory computer-readable medium containing
computer-executable instructions stored thereon that when
executed cause a computer device to perform the steps
comprising:
(a) receiving from a market data source data representing a first
snapshot of market depth information, the first snapshot of
market depth information representing a state of the market at a
first fixed time, wherein the data representing the first snapshot
of market depth information includes numbers of pending
orders associated with each of multiple prices, and wherein the
numbers of pending orders associated with each of multiple
prices includes a first number of pending orders at a first price;
(b) commencing display on a display device of a graphical user
interface that includes the data representing the first snapshot of
market depth information;
(c) after (b) receiving from the market data source trade data for
at least one trade that occurred after the first fixed time at the
first price;
(d) processing at a processor the trade data for the at least one
trade that occurred after the first fixed time at the first price to
associate the trade data with a visually perceptible graphical
user interface element;
(e) displaying the visually perceptible graphical user interface
element on the graphical user interface, wherein the visually
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perceptible graphical user interface element comprises an
alteration in an appearance of a first price cell of the graphical
user interface displaying the first price, and wherein (c) through
(e) occur while displaying the graphical user interface that
includes the data representing the first snapshot of market depth
information; and
(f) after (e) receiving from the market data source data
representing a second snapshot of market depth information, the
second snapshot of market depth information representing a
state of the market at a second fixed time after the occurrence of
the at least one trade.
The Rejections on Appeal
1. Claims 1 and 4—13 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter. App. Br. 3.
2. Claims 1, 4, 5, and 7—11 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Schluetter et al. (“Schluetter”)
(US 2006/0259384 Al, published Nov. 16, 2006); Brumfield et al.
(“Brumfield”) (US 2004/0117292 Al, published June 17, 2004); and Bums
(US 2004/0093300 Al, published May 13, 2004). Id.
3. Claims 6 and 12 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Schluetter, Brumfield, Bums, and Duquette (US
2009/0292652 Al, published Nov. 26, 2009). Id.
4. Claim 13 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Schluetter, Brumfield, Bums and Kemp II et al. (“Kemp”)
(US 2003/0236737 Al, published Dec. 25, 2003). Id.
ISSUES
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The principal issues before us are whether the Examiner erred in
finding that:
1. The claimed “computer-executable instructions” that cause a
computer device to perform the steps of “receiving” data, “commencing
display” of a “graphical user interface,” “processing” data, and “displaying”
a graphical user interface “element” (claim 1) is directed to patent ineligible
subject matter.
2. The combination of Schluetter and Brumfield teaches or suggests
“after [commencing display of a graphical user interface that includes data
representing a first snapshot of market depth information], receiving . . .
trade data for at least one trade that occurred after the first fixed time at the
first price,” “processing ... the trade data,” and “displaying the visually
perceptible graphical user interface element on the graphical user interface,”
wherein the element “comprises an alteration in an appearance of a first
price cell of the graphical user interface displaying the first price” and the
processing of the trade data and displaying the element occur “while
displaying the graphical interface that includes the data representing the first
snapshot of market depth information.” Id.
FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Appellants ’ Invention
1. Appellants recognize that, in transmitting market depth data, it is
common for market depth data to change at times in between the
transmission of the periodic snapshots, resulting in users not having accurate
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Application 10/874,561
market depth information. Spec. 13. Accordingly, the invention determines
whether additional trade data is received for trades that have occurred after
transmission of the first snapshot of market depth information, but before the
transmission of another snapshot of market depth information. Id. 127.
Accordingly, visually perceptible mechanisms are used to represent the trade
data received. Such a user would quickly recognize that a transaction
occurred at this price after the first snapshot of market depth information.
Id. 128. Figure 3 shows an example of using an icon as a visually
perceptible mechanism, and is reproduced below:
ssis
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Figure 3
Figure 3 shows positioning an icon 314 next to a price to indicate that
a trade was executed at the price “83575” after the transmission of the first
snapshot of market depth information. Id.
Schluetter
2. Schluetter discloses displaying market information on a graphical user
interface (Abst.), wherein a display of “market depth” allows a user to view
and enter orders (142). Figure 7 is reproduced below:
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Application 10/874,561
Q4 (Price Column}
702 {LTQ Column)
Figure 7 illustrates a Last Traded Quantity (LTQ) marker 700
showing a cumulative quantity for all consecutive trades. Schluetter 1 82.
By residing next to the price (column 704) at which the last contract traded,
an indicator indicates to the user the price at which that trade occurred. Id.
183.
Brumfield
3. Brumfield discloses trading and displaying market information,
wherein Figures 11 and 12 are reproduced below:
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Application 10/874,561
1100 1200
Figure 11 shows market information with the use of a graphical indicator to
highlight the inside market and Figure 12 shows movement of the graphical
indicators along the static axis to enable a trader to quickly identify a change
in the market. Brumfield H 107—108. As shown in Figures 11—12, the
graphical indicator 1102, 1202 is a rectangular block that surrounds the best
bid price and its quantity. Id. Additionally, as shown in Figure 12, an
indicator 1204 is used to highlight where the inside market was previously.
Id. 1109.
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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments presented in this appeal. Arguments which Appellants could
have made, but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv)(2015). On the record before us, we are not
persuaded the Examiner has erred. We adopt as our own the findings and
reasons set forth in the rejections from which the appeal is taken and in the
Examiner’s Answer, and provide the following for highlighting and
emphasis.
Rejection Under 35 U.S.C. §101
Appellants argue the Examiner erred in concluding the claims
constitute patent ineligible subject matter. App. Br. 3—12.1 In particular,
with respect to claim 1, although Appellants concede that “the claim is
directed to an abstract idea (a mathematical algorithm) and recites generic
computer components functioning at a high level of generality (computer
screen, processor),” Appellants contend that the claims “would nonetheless
be patent eligible.” Id. at 11. According to Appellants, claim 1 “includes
significantly more” {id. at 3), since parts of claim 1 “are directed executable
instructions for receiving and displaying other types of data in a manner
having specific temporal and spatial limitations that are not required as part
of mere computer implementation of the asserted abstract idea” {id. at 6).
Appellants contend “claim 1 fits well with DDR Holdings” because “claim 1
similarly includes instructions for combining and displaying multiple types
1 Appellants do not provide substantive arguments for claims 4—13 separate
from those of claim 1 from which they depend (App. Br. 12), and thus, we
choose claim 1 as representative of the group. 37 C.F.R. § 41.37(c)(l)(iv).
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of information in a particular way. Id. at 11, citing DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1259 (Fed. Cir. 2014).
Based on the record before us, we are not persuaded of Examiner
error.
Under 35 U.S.C. § 101, the Supreme Court has long interpreted the
statute 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 Inti, 134 S. Ct. 2347, 2354 (2014). The Supreme Court,
in Alice, reiterated the two-step framework previously set forth in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289,
1300 (2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 134 S. Ct. at 2355. The first step is
to “determine whether the claims at issue are directed to one of those patent-
ineligible concepts,” such as an abstract idea, as the Examiner concludes in
this case. If the claims are not directed to an abstract idea, the inquiry ends.
Otherwise, the inquiry proceeds to the second step where the elements of the
claims are considered “individually and ‘as an ordered combination”’ to
determine whether there are additional elements that “‘transform the nature
of the claim’ into a patent-eligible application.” Alice, 134 S. Ct. at 2355
(quoting Mayo, 132 S. Ct. at 1297).
In the present application, we agree with the Examiner that claim 1 is
“broadly, drawn to a concept of receiving and displaying data (information
regarding trades).” Ans. 3. According to the Examiner, the claimed steps
“correspond to the concept of receiving and displaying data regarding
trades,” which is “considered to be an abstract idea inasmuch as such
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activity is considered a fundamental economic practice” by “receiving data,
processing the data and displaying the data, all by a computer device.” Id. at
5, see also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed.
Cir. 2016) (holding that “collecting information, analyzing it, and displaying
certain results of the collection and analysis” are “a familiar class of claims
‘directed to’ a patent ineligible concept”); In re TLI Commc ’ns LLC Patent
Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLCv. Iatric
Sys., Inc., 839 F.3d 1089, 1093—94 (Fed. Cir. 2016). Even Appellants
concede that “the claim is directed to an abstract idea.” App. Br. 11. On
this record, we find claim 1 is directed to an abstract idea under step one of
Alice.
As to Alice step two, although Appellants contend claim 1 “includes
significantly more” (App. Br. 3) because parts of claim 1 “are directed
executable instructions for receiving and displaying other types of data” in a
particular manner {id. at 6), “the relevant question is whether the claims here
do more than simply instruct the practitioner to implement the abstract idea
... on a generic computer.” Alice, 134 S. Ct. at 2359. In this case, the
Examiner concludes, and we agree, “the claim remains drawn to the abstract
idea of receiving and displaying data,” wherein “[a] generic computer
receives data and displays data.” Ans. 3. That is, we agree that these
limitations are all generic computer functions (i.e., “receiving,”
“displaying,” and “processing” of data) that are well-understood, routine,
and conventional activities previous known to the industry. Alice, 134 S. Ct.
at 2359. Although Appellants contend that the claims require “executable
instructions for receiving and displaying other types of data in a manner
having specific temporal and spatial limitations” (App. Br. 6), such
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executable instructions for receiving and displaying particular data in a
particular manner do not add meaningful limitations to the idea of receiving
and displaying data beyond generally linking the method to a particular
technological environment.
Although Appellants contend “claim 1 fits well with DDR Holdings”
because “claim 1 similarly includes instructions for combining and
displaying multiple types of information in a particular way” (App. Br. 11),
DDR Holdings does not help Appellants. In DDR Holdings, the Federal
Circuit determined that certain claims satisfied Mayo/Alice step two because
“the claimed solution amounted to an inventive concept for resolving [a]
particular Internet-centric problem,” i.e., a challenge unique to the Internet.
DDR Holdings, 773 F.3d at 1257—59; see Synopsys, 839 F.3d at 1151
(noting that “[i]n DDR Holdings, we held that claims ‘directed to systems
and methods of generating a composite web page that combines certain
visual elements of a ‘host’ website with content of a third-party merchant’
contained the requisite inventive concept”). The Federal Circuit explained
that the patent-eligible claims specified “how interactions with the Internet
are manipulated to yield a desired result. . . that overrides the routine and
conventional sequence of events ordinarily triggered by the click of a
hyperlink.” DDR Holdings, 773 F.3d at 1258. The court reasoned that those
claims recited a technological solution “necessarily rooted in computer
technology” that addressed a “problem specifically arising in the realm of
computer networks.” Id. at 1257.
The claims here do not address a similar problem and do not contain a
similar inventive concept as the patent-eligible claims in DDR Holdings.
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Instead, as the Examiner points out, the claims are “broadly, drawn to a
concept of receiving and displaying data (information regarding trades),”
wherein “[a] generic computer receives data and displays data.” Ans. 3.
For at least the aforementioned reasons, on this record, we sustain the
patent-ineligible subject matter rejection under 35 U.S.C. § 101 of claim 1
and claims 4—13 falling therewith.
Rejection Under Pre-AIA 35 U.S.C. § 103(a)
As for claim 1, Appellants contend Schluetter in view of Brumfield
“does not show a visually perceptible graphical user interface element that
(i) is associated with a trade occurring after the first fixed time, and
(ii) alters the appearance of a cell displaying the relevant trade price.” App.
Br. 18. According to Appellants, “the indicator portion merely represents a
change in the inside market” wherein “[t]he location of the insider market is
based on orders” which “are distinct from trades.” Id.
Further, Appellants contend that the claims require that “the element
associated with the post-first-fixed-time trade be displayed while the
graphical user interface displays a number of orders at the first price that is
for a time before the time of the trade associated with that element” and,
thus, the number of orders would “not be updated to reflect any of those
orders having been filled.” Id. According to Appellants, nothing in
Schluetter, nor Brumfield, indicates that “a non-updated number of pending
orders would be displayed for a price at which a trade occurred at a later
time, and while displaying an indicator of that later trade.” Id. at 18—19.
We have considered all of Appellants’ arguments and evidence
presented. However, we disagree with Appellants’ contentions regarding the
Examiner’s rejections of the claims. We agree with the Examiner’s
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conclusion that claim 1 would have been obvious over the combined
teachings of Schluetter, Brumfield, and Bums.
As an initial matter of claim constmction, we give the claim its
broadest reasonable interpretation consistent with the Specification. See In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). However, “limitations are
not to be read into the claims from the specification.” In re Van Geuns, 988
F.2d 1181, 1184 (Fed. Cir. 1993).2
2 We also note that by arguing that Schluetter in view of Brumfield “does
not show a visually perceptible graphical user interface element” as claimed
(App. Br. 18), Appellants are contending the data displayed in the claimed
invention differs from data displayed in Schluetter and Brumfield. That is,
Appellants’ arguments appear to turn on the type of data intended for human
perception (e.g., intended to be displayed to a user). However, a question
arises as to whether Appellants’ contention urging patentability is predicated
on non-functional descriptive material (i.e., the type or content of the
displayed data). Here, the data is displayed, but the particular content of the
data displayed is not positively recited as actually being used to change or
affect the manner in which the data is displayed. Moreover, the
informational content of the data is not positively recited as actually being
used to change or affect any machine or computer function, within the broad
scope of claim 1. The PTAB has provided guidance in decisions on the
appropriate handling of claims that differ from the prior art only based on
“non-functional descriptive material.” See Ex parte Nehls, 88 USPQ2d
1883, 1889 (BPAI 2008) (precedential) (“[T]he nature of the information
being manipulated does not lend patentability to an otherwise unpatentable
computer-implemented product or process.”); In re Ngai, 367 F.3d 1336,
1338 (Fed. Cir. 2004); In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994);
see also Ex parte Mathias, 84 USPQ2d 1276, 1279 (BPAI 2005)
(informative) (“[Nonfunctional descriptive material cannot lend
patentability to an invention that would have otherwise been anticipated by
the prior art.”), affd, 191 Fed. App’x 959 (Fed. Cir. 2006) (Rule 36)
(“Nonfunctional descriptive material cannot render nonobvious an invention
that would have otherwise been obvious.”), affd, No. 06-1003 (Fed. Cir.
June 12, 2006) (Rule 36).
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Here, we agree with the Examiner that Schluetter discloses and
suggests receiving a “first snapshot of market depth information representing
a state of the market at a first fixed time” wherein Schluetter shows
“receiving information representing the market for a commodity at a point in
time.” Final Act. 7. We also agree that Schluetter discloses and suggests
“receiving from the market data source trade data for at least one trade that
occurred after the first fixed time at the first price,” wherein Schuetter shows
“receiving quantity and price of most recent trade at last traded price.” Id.
Further, we find no error with the Examiner’s reliance on Schluetter
for teaching, or at least suggesting, the display of “a visually perceptible
graphical user interface element associated with the at least one trade
(highlighted areas of display with associated (FTQ) prices; a trade(s) having
occurred after the first snap shot (e.g., 710 or 712, showing after 706)).” Id.
at 8; FF 2. That is, Schluetter discloses displaying a visually perceptible
graphical user interface element, such a red or blue highlight indicator, on
the graphical user interface in column 702, next to the FTQ (Fast Traded
Quantity) price in the price column 704, wherein the element is displayed
while the graphical interface includes the data representing a previous FTQ
price 706. FF 2. Thus, like Appellants’ invention (FF 1), Schluetter also
positions the visually perceptible element next to a price to indicate that a
trade was executed at the price after the transmission of a previous snapshot
of market depth information but while displaying data representing the
previous snapshot (FF 2).
We also agree with the Examiner’s reliance on Brumfield to teach and
suggest “displaying the visually perceptible graphical user interface element
on the graphical user interface” wherein “the visually perceptible graphical
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user interface element comprises an alteration in an appearance of a first
price cell of the graphical user interface displaying first price data” and the
display occur “while displaying the graphical user interface that includes the
data representing the first snapshot of market depth information,” as recited
in claim 1. Final Act. 9. We agree that “Brumfield shows that indicators
may be used to highlight where an inside market was previously, where a
change has occurred and both are now present on a display.” Ans. 12. As
the Examiner finds, Brumfield teaches “trades having occurred (graphical
indicators, 1202 (which are alterations to appearance of price cell. . . and
movement from previous inside market)” while “displaying previous market
depth information (1204 indicating price.)” Id.', FF 3.
The issue here is not what Schluetter and Brumfield individually
teach, but rather what the combination teaches or would have suggested to
one of ordinary skill in the art. See In re Keller, 642 F.2d 413, 425 (CCPA
1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Here, we find no error with the Examiner’s finding that the contested
limitations are at least suggested by the combination of Schluetter and
Brumfield. Thus, although Appellants contend “[t]he location of the insider
market [as shown in Brumfield] is based on orders” which “are distinct from
trades” (App. Br. 18), we agree with the Examiner that Schluetter teaches
and suggests display of data associated with a trade occurring after the first
fixed time (FF 2). Similarly, although Appellants contend that nothing in
Schluetter nor Brumfield indicates that “a non-updated number of pending
orders would be displayed for a price at which a trade occurred at a later
time, and while displaying an indicator of that later trade” (App. Br. 18—19),
the Examiner properly relies on Schluetter’s “bid and ask quantities in
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columns 300 and 302” for “a snapshot of market depth information that
includes numbers of pending orders associated with each of multiple prices”
(Ans. 12), and properly relies on Brumfield for displaying a visually
perceptible graphical user interface element “while displaying the graphical
user interface that includes the data representing the first snapshot of market
depth information” (Final Act. 9).
We also agree with the Examiner that it would have been obvious to
one of ordinary skill in the art, in view of Brumfield, “to have modified the
display in Schluetter to incorporate additional detail relevant to trades made”
in order “to provide to a trader, more detailed information in one place, that
may allow the trader to determine action she must take.” Final Act. 9—10.
The Supreme Court has determined that the conclusion of obviousness
can be based on the interrelated teachings of multiple patents, the effects of
demands known to the design community or present in the marketplace, and
the background knowledge possessed by a person having ordinary skill in
the art. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The skilled
artisan would “be able to fit the teachings of multiple patents together like
pieces of a puzzle.” Id. at 420.
Appellants have presented no evidence that displaying the
combination of various data was “uniquely challenging or difficult for one of
ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Instead, we
find the skilled artisan would have found it obvious to display the various
data, since the skilled artisan is “a person of ordinary creativity, not an
automaton.” KSR, 550 U.S. at 421.
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On this record, we find no error with the Examiner’s rejection of
claim 1 over Schluetter and Brumfield, in further view of Bums. Appellants
do not provide substantive arguments for claims 4—13 separate from those of
claim 1 {id. at 21—22), and thus, we also sustain the rejections of claims 4, 5,
and 7—11 over Schluetter, Brumfield, and Bums; of claims 6 and 12 over
Schluetter, Brumfield, Bums, and Duquette; and of claim 13 over Schluetter,
Brumfield, Bums, and Kemp. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s rejections of claims 1, and 4—13 under 35
U.S.C. §§ 101 and 103.
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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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