Jarrod Wilcox

Patent Trials and Appeals Board

Aug 2, 2019

12778542 - (D) (P.T.A.B. Aug. 2, 2019)

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.
12/778,542 05/12/2010 Jarrod Wilcox 109988-1 6617
21125 7590 08/02/2019
NUTTER MCCLENNEN & FISH LLP
SEAPORT WEST
155 SEAPORT BOULEVARD
BOSTON, MA 02210-2604
EXAMINER
PUTTAIAH, ASHA
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
docket@nutter.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JARROD WILCOX
____________________

Appeal 2018-005082
Application No. 12/778,5421
Technology Center 3600
____________________

Before ST. JOHN COURTNEY III, MARC S. HOFF, and JENNIFER
MCKEOWN, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a Final Rejection of
claims 1–8 and 19.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellant’s invention is a method for identifying an allocation of
investment resources among a plurality of investments. The method
comprises the steps of generating a representation of a first joint probability
distribution of investor attributes, at least one of which is a representation of

1 Appellant states that the real party in interest is Wealthmate, Inc.
App. Br. 1.
2 Claims 9–18 have been cancelled.
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risk aversion, and of a plurality of attributes for a set of investments;
generating an objective function that incorporates the representation of the
first joint probability distribution; and optimizing, using a microprocessor,
an allocation of investment resources for the plurality of investments
according to the objective function. Spec. 2.
Claim 1 is reproduced below:
A method for identifying an allocation of investment
resources among a plurality of investments to construct an
investment portfolio for an investor, the method comprising:
generating a representation of a first joint probability
distribution of one or more investor attributes, at least one of
which is a representation of the probability distribution of risk
aversion as a random variable, and one of a plurality of
attributes for a set of investments to be allocated;
generating an objective function that incorporates the
representation of the first joint probability distribution,
including the representation of the probability distribution of
risk aversion as a random variable; and
optimizing, using a microprocessor, an allocation of
investment resources for each of the plurality of investments
according to the objective function.

Claims 1–8 and 19 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter.
ISSUE
1. Is the claimed invention directed to an abstract idea?
2. Does the claimed invention include significantly more than an
abstract idea so as to transform the claim into a patent-eligible application of
that abstract idea?
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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 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. See, e.g., Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 216 (2014) (citation omitted).
In determining whether a claim falls within an excluded category,
we are guided by the Supreme Court’s two-step 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, 192 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 182 n.7 (quoting Corning
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v. Burden, 56 U.S. (15 How.) 252, 267–68 (1854))); 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
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 at 176; 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 Supreme 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. (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 (citation 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
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77). “[M]erely requir[ing] generic computer implementation[] fail[s] to
transform that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance (“Memorandum”). Under that
guidance, 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 interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are 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.
See Memorandum, 84 FR at 56
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ANALYSIS
SECTION 101 REJECTION
Appellant argues that the claimed invention is not directed to an
abstract idea. Appellant contends that the Examiner ignored substantial
aspects of the claims, that the portions ignored are novel and unobvious, and
that the ignored portion “solves a long standing and important problem.”
App. Br. 8.

DOES THE CLAIM RECITE AN ABSTRACT IDEA? STEP 2A, PRONG ONE
Appellant’s argument does not persuade us that the claimed invention
is not directed to an abstract idea.
Independent claim 1 recites a method for identifying an allocation of
investment resources across a plurality of investments. The method includes:
(a) generating a representation of a first joint probability distribution
of investor attributes, at least one of which is a representation of
the probability distribution of risk aversion, and one of a plurality
of attributes for a set of investments to be allocated;
(b) generating an objective function that incorporates the
representation of the first joint probability distribution; and
(c) Optimizing, using a microprocessor, an allocation of investment
resources among the plurality of investments (according to the
objective function).
The Memorandum includes “certain methods of organizing human
activity” as a category of abstract idea to which an invention may be
directed. Examples of such methods include “fundamental economic
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principles or practices (including hedging, insurance, mitigating risk);
commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions). Memorandum, 84 Fed. Reg. at 52.
We determine, that the claim 1 limitations of identifying an allocation
of resources among a plurality of investments according to a determined
joint probability distribution that leads to a generated objective function, and
optimizing such allocation among said plurality of investments, recite an
abstract idea that falls into the subcategory of a fundamental economic
practice, i.e., of investment resource allocation.3 See Final Act. 6. We do not

3 Alice, 573 U.S. at 219–20 (concluding that use of a third party to mediate
settlement risk is a “fundamental economic practice” and thus an
abstract idea); id. (describing the concept of risk hedging identified as an
abstract idea in Bilski as “a method of organizing human activity”); Bilski,
561 U.S. at 611–612 (concluding that hedging is a “fundamental economic
practice” and therefore an abstract idea); Bancorp, 687 F.3d at 1280
(concluding that “managing a stable value protected life insurance policy by
performing calculations and manipulating the results” is an abstract idea);
Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378–
79 (Fed. Cir. 2017) (holding that concept of “local processing of payments
for remotely purchased goods” is a “fundamental economic practice, which
Alice made clear is, without more, outside the patent system.”); OIP Techs.,
Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(concluding that claimed concept of “offer-based price optimization” is an
abstract idea “similar to other ‘fundamental economic concepts’ found to be
abstract ideas by the Supreme Court and this court’’); buySAFE, Inc. v.
Google, Inc., 765 F.3d. 1350, 1355 (Fed. Cir. 2014) (holding that concept of
“creating a contractual relationship—a ‘transaction performance guaranty’”
is an abstract idea); In re Comiskey, 554 F.3d 967, 981 (Fed. Cir. 2009)
(claims directed to “resolving a legal dispute between two parties by the
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agree with Appellant that the Examiner ignored substantial aspects of the
claims; in fact, the Examiner recognized that that all the limitations of the
claims were to be considered in considering whether the claims are directed
to an abstract idea. See App. Br. 8; Final Act. 6.
It is uncontroversial that the concept of managing an investment
portfolio, and allocating resources among various components of an
investment portfolio, is a well-known, long-performed economic practice.
Appellant admits that the particular abstract idea concerning optimal
allocation of investments upon which Appellant improved (Markowitz’s
method) has been known for over fifty years. Spec. ¶ 1. We agree with the

decision of a human arbitrator” are ineligible); Ultramercial, Inc. v. Hulu,
LLC, 772 F.3d 709, 715 (Fed Cir. 2014) (holding that claim “describ[ing]
only the abstract idea of showing an advertisement before delivering free
content” is patent ineligible); In re Ferguson, 558 F.3d 1359, 1364 (Fed Cir.
2009) (holding methods “directed to organizing business or legal
relationships in the structuring of a sales force (or marketing company)” to
be ineligible); Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044,
1054 (Fed. Cir. 2017) (“The Board determined that the claims are directed to
the abstract idea of ‘processing an application for financing a purchase’ . . .
We agree.”); Interval Licensing LLC, v. AOL, Inc., 896 F.3d 1335, 1344–45
(Fed. Cir. 2018) (concluding that “[s]tanding alone, the act of providing
someone an additional set of information without disrupting the ongoing
provision of an initial set of information is an abstract idea,” observing that
the district court “pointed to the nontechnical human activity of passing a
note to a person who is in the middle of a meeting or conversation as further
illustrating the basic, longstanding practice that is the focus of the [patent
ineligible] claimed invention.”); Voter Verified, Inc. v. Election Sys. &
Software, LLC, 887 F.3d 1376, 1385 (Fed. Cir. 2018) (finding the concept of
“voting, verifying the vote, and submitting the vote for tabulation,” a
“fundamental activity” that humans have performed for hundreds of years, to
be an abstract idea); In re Smith, 815 F.3d 816, 818 (Fed. Cir. 2016)
(concluding that “[a]pplicants’ claims, directed to rules for conducting a
wagering game” are abstract).
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Examiner that the claimed concept of resource allocation across a portfolio
is sufficiently similar to the concept of hedging at issue in Bilski, or
sufficiently similar to the concept of managing a stable value protected life
insurance policy as in Bancorp (Bancorp Servs., LLC v. Sun Life Co. of
Canada (U.S.), 687 F.3d 1266 (Fed. Cir. 2012)), to constitute a fundamental
economic practice such as found in other case law. See Final Act. 6.
Appellant’s argument that “the remainder of the claim is novel and
unobvious” is not persuasive of error. App. Br. 8. Whether the claimed
invention is rejected based on prior art under §§ 102 and 103 is an inquiry
distinct from whether the subject matter of the invention is patent-eligible
under § 101. Appellant’s suggested comparison of this invention with the
facts of previous PTAB decisions is also unpersuasive. App. Br. 9–11. We
do not agree with Appellant that the facts of any of the cited cases are
sufficiently similar to the factual circumstances of this invention for any of
the prior decisions to be pertinent.
Accordingly, we conclude that the claimed invention recites an
abstract idea, i.e., a fundamental economic practice, which is one of the
categories of abstract ideas identified in the Revised Guidance. 84 Fed. Reg.
at 52.
INTEGRATED INTO A PRACTICAL APPLICATION (STEP 2A, PRONG TWO)
We next evaluate whether the claims integrate the identified abstract
idea of identifying an allocation of resources among a plurality of
investments according to a determined joint probability distribution that
leads to a generated objective function, and optimizing such allocation
among said plurality of investments, into a practical application. See
Memorandum, 84 Fed. Reg. at 51. We consider whether there are any
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additional elements beyond the abstract ideas that, individually or in
combination, “integrate the [abstract ideas] into a practical application, using
one or more of the considerations laid out by the Supreme Court and the
Federal Circuit.” Id. at 54–55.
Under the Memorandum, the following exemplary considerations are
indicative that an additional element (or combination of elements) may have
integrated the exception into a practical application:
• An additional element reflects an improvement in the functioning of a
computer, or an improvement to other technology or technical field;
• an additional element that applies or uses a judicial exception to effect a
particular treatment or prophylaxis for a disease or medical condition;
• an additional element implements a judicial exception with, or uses a
judicial exception in conjunction with, a particular machine or manufacture
that is integral to the claim;
• an additional element effects a transformation or reduction of a particular
article to a different state or thing; and
• an additional element applies or uses the judicial exception in some
other meaningful way beyond generally linking the use of the judicial
exception to a particular technological environment, such that the claim as a
whole is more than a drafting effort designed to monopolize the exception.
84 Fed. Reg. at 55.
Applying the considerations from the Memorandum to the invention
under appeal, we determine that Appellant discloses an improvement to the
underlying abstract idea of optimizing investment allocation for a client
having certain characteristics, rather than any improvement in the
functioning of a computer, or an improvement to other technology or
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technical field. We determine that the claimed invention is clearly not
concerned with prophylaxis for a disease or medical condition. As Appellant
discloses only a generic microprocessor on which to execute the steps of the
claimed method, we determine that the claimed invention does not recite an
additional element that implements the claimed abstract ideas with a
particular machine or manufacture. See Spec. ¶ 70. Further, Applicant makes
no specific argument concerning the integration of the recited abstract idea
into a practical application.
Thus, under Step 2A, Prong Two (MPEP §§ 2106.05(a)–(c) and
(e)–(h)), we conclude that claim 1 does not integrate the judicial exception
into a practical application.

THE INVENTIVE CONCEPT, STEP 2B
Because we determine that each independent claim is directed to a
judicial exception, we “consider the elements of each claim both
individually and ‘as an ordered combination’ to determine whether the
additional elements” add enough to transform the “nature of the claim” into
“significantly more” than the judicial exception. See Alice, 573 U.S.
at 217–18, 221–22 (quoting Mayo, 566 U.S. at 78–79). Under Mayo/Alice
step two, we “look with more specificity at what the claim elements add, in
order to determine ‘whether they identify an “inventive concept” in the
application of the ineligible subject matter’ to which the claim is directed.”
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1258
(Fed. Cir. 2016) (quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016)). An “inventive concept” requires more than
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“well-understood, routine, conventional activity already engaged in” by the
relevant community. Rapid Litig. Mgmt. Ltd. v. CellzDirect, Inc., 827 F.3d
1042, 1047 (Fed. Cir. 2016) (quoting Mayo, 566 U.S. at 79–80). But a
“non-conventional and non-generic arrangement of known, conventional
pieces” may provide an “inventive concept” satisfying step two. Bascom
Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1350
(Fed. Cir. 2016).
Appellant claims a method for identifying an allocation of investment
resources to construct an investment portfolio, which includes the steps of
generating a representation of a first joint probability distribution of one or
more attributes; generating an objective function that incorporates that
representation; and optimizing an allocation of investment resources
according to the objective function. The claimed invention includes the
additional element of “using a microprocessor” in the step of optimizing.
Appellant discloses a method for assisting investors to better allocate
investment resources that seeks to overcome expressed disadvantages with
the Markowitz mean-variance optimization model (as well as other models).
Spec. ¶ 23. Appellants disclose generating a representation of the joint
probability distribution of investor and investment attributes. Spec. ¶ 33.
Appellants then generate an objective function for subsequent portfolio
optimization. Id. Appellants explain that optimization of allocation weights
for the investment portfolio can be done by a number of different optimizing
algorithms. Spec. ¶ 69. Appellant discloses no features or requirements of
any computer hardware required to perform the inventive method other than
“[a]n appropriate computational apparatus of requisite memory storage and
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processing speed.” Appellant discloses that one embodiment could benefit
from “parallel processors,” without further elaboration. Spec. ¶ 70.
We determine that while Appellant discloses method steps to be
performed, and disclose what they term to be improvements to a prior art
abstract idea of optimizing investment allocation, Appellant discloses and
claim generic computer components used conventionally. Further, we are
not persuaded that Appellant provides a non-generic arrangement of known,
conventional elements. Rather, we conclude that the disclosed and claimed
invention uses generic computer components as a mere tool to implement
the abstract mental process of generating a representation of a joint
probability distribution, generating an objective function that incorporates a
representation of that joint probability distribution, and optimizing an
allocation of investment resources according to that objective function.
As Appellant has not disclosed any features that would both (a)
amount to “significantly more” than the abstract idea of allocation of
investment resources among a plurality of investments and (b) would be
considered as other than “well-understood, routine, and conventional,” these
claim limitations fail to indicate the presence of an inventive concept that
would transform the nature of the claim. We further find that Appellant’s
disclosure, discussed supra, is specified at a high level of generality.
Appellant argues that the claims are directed to “significantly more”
than the Examiner’s identified abstract idea of “constructing an investment
portfolio.” App. Br. 12. Appellant asserts that the claim recites an ordered
combination of steps “that solves 50 year old problems in the art.” Id.
Appellant’s position is that the claims are patent eligible because “they
specifically outline the unconventional manner in which risk aversion is
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modeled within a joint probability distribution in order to solve a 50 year old
problem,” and the claims are narrowly drafted so as not to preempt other
ways of constructing an investment portfolio. App. Br. 13.
Although Appellant summarizes DDR Holdings, Bascom, and
Amdocs, and suggest generally that the claimed invention is similar to the
inventions detailed in those cases, Appellant’s argument does not persuade
us that the claimed abstract idea is integrated into a practical application. As
Appellant mentions, the Amdocs court held that the claims were patent-
eligible because they recited an ordered combination that “amount[ed] to an
invention that is not merely a routine or conventional use of technology,
produce[d] an unconventional result,” and is narrowly drawn to avoid
preemption concerns. App. Br. 13; Amdocs (Israel) Ltd., v. Openet Telecom,
Inc., 841 F.3d at 1298. The Bascom court found patent eligibility due to the
inventive concept of “the installation of a filtering tool at a specific location,
remote from the end-users, with customizable filtering features specific to
each end user,” providing the benefits of a filter on a local computer and of a
filter on the ISP server. Bascom, 827 F.3d at 1347. “The claims do not
merely recite the abstract idea of filtering content along with the requirement
to perform it on the Internet . . . [R]ather, they recite a specific, discrete
implementation of the abstract idea of filtering content,” and “a technical
improvement over prior art ways of filtering such content.” Id. at 1348. In
DDR Holdings, the court concluded that the claimed solution, though
directed to an abstract idea, was nevertheless patent-eligible because it “is
necessarily rooted in computer technology in order to overcome a problem
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specifically arising in the realm of computer networks.” DDR Holdings
LLC, v. Hotels.com, L.P., 773 F.3d 1245, 1253 (Fed. Cir. 2014).
We determine that unlike Amdocs, Appellant does not disclose or
claim an invention beyond a routine or conventional use of technology.
Unlike Bascom, Appellant does not disclose or claim a specific, discrete
implementation of an abstract idea; rather, they claim an improvement to the
underlying abstract idea. Unlike DDR Holdings, Appellant does not recite an
invention that is necessarily rooted in computer technology, to overcome a
problem specifically arising in the realm of computer networks; rather,
Appellant claims a mental process, to solve a business problem that does not
arise in the realm of computer networks, that constitutes an improvement to
a previously known abstract idea.
Appellant’s arguments concerning previous PTAB decisions are also
unpersuasive of Examiner error. App. Br. 13–15. Appellant has not
demonstrated that the facts of any particular decision are sufficiently similar
to the facts concerning the invention under appeal. The decisions in which
the Board found a specific technical improvement are particularly
inapposite, as Appellant here has disclosed only an improvement to the
underlying abstract idea of optimizing investment resource allocation.
Appellant’s general argument that dependent claims 3, 6, and 7 are
separately patent-eligible is similarly unpersuasive. App. Br. 19. Each of
these dependent claims requires only a further mathematical calculation that
refines the underlying abstract idea of optimizing investment resource
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allocation. We do not agree with Appellant’s allegation that any of these
claims “improve the functioning of the computer.” Id.

CONCLUSION CONCERNING PATENT ELIGIBILITY
Because we conclude that the claimed invention recites a judicial
exception, to wit, one or more abstract ideas; does not integrate those
abstract ideas into a practical application; and does not add a specific
limitation beyond the judicial application that is not well-understood,
routine, and conventional, we conclude that the claims are not directed to
patent-eligible subject matter. We sustain the Examiner’s § 101 rejection of
claims 1–8 and 19.

CONCLUSION
1. The claimed invention is directed to an abstract idea.
2. The claimed invention does not recite significantly more than the
abstract idea so as to transform the claim into a patent-eligible application of
the abstract idea.

ORDER
The Examiner’s decision to reject claims 1-8 and 19 under 35 U.S.C.
§ 101 is affirmed.
TIME PERIOD
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).

AFFIRMED