Julie Lerner

Patent Trials and Appeals Board

Dec 30, 2020

2020004787 (P.T.A.B. Dec. 30, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/170,915 06/01/2016 Julie A. Lerner PANX01-00003 4212
7590 12/30/2020
Julie A. Lerner
13 Ogden Street
Denver, CO 80218
EXAMINER
CHAKRAVARTI, ARUNAVA
ART UNIT PAPER NUMBER
3693
MAIL DATE DELIVERY MODE
12/30/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JULIE A. LERNER

_____________

Appeal 2020-004787
Application 15/170,915
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, LARRY J. HUME, and
MATTHEW J. McNEILL, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 21–25. Claims 1–20 are canceled. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2019). According to Appellant, the “real party in
interest is the inventor, Julie A. Lerner.” See Appeal Br. 3.
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STATEMENT OF THE CASE2
Introduction
Appellant’s claimed invention relates to a “commodity and/or a
financial instruments trading platform.” Spec. ¶ 2.
Representative Independent Claim 21
A method within a computing system of performing
multidimensional physical commodities trading based upon
transportation spreads, the method comprising:
providing a user interface on a display for the computing
system, the user interface configured to
display, on the display for the computing system, a
plurality of electronic offers relating to a physical
commodity received from a plurality of remote data
processing systems at a plurality of locations, the
plurality of offers including one or more sell offer(s) to
sell the physical commodity at a first location, one or
more buy offer(s) to purchase the physical commodity at
a second location, and one or more transportation offer(s)
for transportation of the physical commodity from the
first location to the second location, and
receive, via user input to the computing system
based on the displayed plurality of electronic offers, user
instructions to concurrently execute orders without
further user interaction for one of
a user-selected combination of a first of the
one or more sell offer(s ), a first of the one or more
buy offer(s), and a first of the one or more
transportation offer(s),
or

2 We herein refer to the Final Office Action, mailed October 1, 2019 (“Final
Act.”); the Advisory Action mailed December 20, 2019; the Appeal Brief,
filed March 2, 2020 (“Appeal Br.”); the Examiner’s Answer, mailed April
10, 2020 (“Ans.”); and the Reply Brief, filed June 10, 2020.
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a combination of a second of the one or
more sell offer(s), a second of the one or more buy
offer(s), and a second of the one or more
transportation offer(s) when a price differential
based on purchasing the physical commodity at the
first location contracted under the second of the
one or more sell offer(s ), transporting the
physical commodity from the first location to the
second location contracted under the second of the
one or more transportation offer(s), and selling the
physical commodity at the second location
contracted under the second of the one or more
buy offer(s) reaches a legging risk trade execution
threshold specified by a user of the computing
system;
continuously monitoring the received plurality of
electronic offers aggregated at the computing system for any
possible combination of the aggregated electronic offers for
which a differential between a price of at least one of the
received buy offer(s) and a combined price of at least one of
the received sell offer(s) and at least one of the received
transportation offer(s) meets or exceeds the user-specified
legging risk trade execution threshold; and
automatically executing, concurrently and without user
interaction, a first buy order corresponding to one of the
received sell offer(s), a first transportation order corresponding
to one of the received transportation offer(s), and a first sell
order corresponding to one of the received buy offer(s) when
the user-specified legging risk trade execution threshold is met
or exceeded by a differential based on a price for the first sell
order and a combined price for the first buy order and the first
transportation order.
Claim 21, Appeal Br. (Claims App.).
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Evidence Relied Upon by the Examiner
Name Reference Date
Georges US 2011/0288982 Al Nov. 24, 2011
Siddall et al.
(“Siddall”)
US 2011/0313905 Al Dec. 22, 2011

Rejections3
Claims Rejected 35 U.S.C. § References/Basis
21–25 101 Eligibility
21–25 103 Georges, Siddall
Claim Grouping
To the extent Appellant has not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are
forfeited.4 See 37 C.F.R. § 41.37(c)(1)(iv).

3 We note the Examiner entered on appeal an after-final amendment which
canceled claims 1–20, thereby rendering moot a different rejection under 35
U.S.C. § 103, which is not before us on appeal. See Advisory Action mailed
December 20, 2019.
4 See In re Google Technology Holdings LLC, No. 2019-1828, 2020 WL
6685948 at * 3 (Fed. Cir. 2020):
It is well established that “[w]aiver is different from forfeiture.”
United States v. Olano, 507 U.S. 725, 733 (1993).[] “Whereas
forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a
known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)) (additional citations omitted). The two scenarios can
have different consequences for challenges raised on appeal, id.
at 733–34, and for that reason, it is worth attending to which label
is the right one in a particular case.
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Analysis
In reaching this Decision, we have considered all evidence presented
and all arguments actually made by Appellant. Throughout this opinion, we
give the claim limitations the broadest reasonable interpretation (BRI)
consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054
(Fed. Cir. 1997). For the reasons discussed infra, we affirm the Examiner’s
rejection of claims 21–25 under 35 U.S.C. § 101, and we reverse the
Examiner’s rejection of claims 21–25 under 35 U.S.C. § 103.
USPTO 35 U.S.C. § 101 MPEP Guidance
In January and October of 2019, the U.S. Patent and Trademark
Office (USPTO) published revised guidance on the application of 35 U.S.C.
§ 101.5 We note the USPTO current eligibility guidance is found in the
Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of Patent
Examination Procedure (MPEP), and particularly within Sections 2103
through 2106.07(c).
“Because the MPEP now incorporates the 2019 Revised Patent
Subject Matter Eligibility Guidance (2019 PEG), October 2019 Patent
Eligibility Guidance Update (October 2019 Update), and the Berkheimer
Memo,6 all references to those materials should now be directed to the

5 “All USPTO personnel are, as a matter of internal agency management,
expected to follow the guidance.” 84 Fed. Reg. No. 4, 51 (Jan. 7, 2019); see
also October 2019 Update at 1.
6 Referring to Berkheimer v. HP, Inc., 881 F.3d. 1360, 1369 (Fed. Cir.
2018).
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MPEP.” See https://www.uspto.gov/patent/laws-and-regulations/
examination-policy/subject-matter-eligibility
(emphasis added).
Accordingly, all references to the MPEP throughout this Decision are
to the Ninth Edition, Revision 10.2019 (Last Revised June 2020), unless
otherwise indicated.
Under MPEP § 2106, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or
mental processes) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).7
MPEP § 2106, Step 2A, Prong One
The Judicial Exception
Under MPEP 2106.04(a), the enumerated groupings of abstract ideas
are defined as follows:
(1) Mathematical concepts – mathematical relationships,
mathematical formulas or equations, mathematical
calculations (see MPEP §2106.04(a)(2), subsection I);
(2) Certain methods of organizing human activity– fundamental
economic 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

7 “Examiners evaluate integration into a practical application by (a)
identifying whether there are any additional elements recited in the claim
beyond the judicial exception, and (b) evaluating those additional elements
individually and in combination to determine whether the claim as a whole
integrates the exception into a practical application.” MPEP § 2106.04(d)II.
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or relationships or interactions between people (including
social activities, teaching, and following rules or
instructions) (see MPEP §2106.04(a)(2), subsection II); and
(3) Mental processes – concepts performed in the human mind
(including an observation, evaluation, judgment, opinion)
(see MPEP § 2106.04(a)(2), subsection III).
Here, the Examiner concludes, inter alia, that the last recited
limitation of “automatically executing, concurrently and without user
interaction, a first buy order corresponding to one of the received sell
offer(s)” and the “concept of executing commodity trading orders to profit
from a spread or avoid losses or legging risk describe[] fundamental
economic practices that are similar to concepts found by the courts to be
abstract as in risk hedging (Bilski), transaction performance guaranty
(buySAFE) and intermediated settlement (Alice).” Final Act. 7 (emphasis
added).
We turn to the Specification for context and note that Appellant’s
method relates to trading systems:
Various embodiments of the present disclosure generally relate
to trading systems. More specifically, various embodiments of
the present disclosure relate to systems and methods for deriving
market data and for signaling and executing arbitrage
opportunities.
Spec. ¶ 30.
In particular, Appellant’s method:
provides the ability to signal and execute arbitrage opportunities
through the system to electronically and instantly lock in profits
from spread disparities. Spread disparities may include
disparities between a futures contract and the underlying physical
commodity, a transportation spread, a delivery spread between
two financial instruments, or a quality or grade disparity between
two financial instruments or physical commodities.
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Spec. ¶ 35 (emphasis added).
Appellant disagrees with the Examiner (Final Act. 7) and contends
that by
‘automatically executing, concurrently and without user
interaction,’ concurrent trades/transactions identified based on a
user-specified legging risk threshold, [c]laim 21 allows a user
to obtain the benefit of an opportunity that existed for so short
of a time as to not be amenable to manual user selection-or even
just manual user confirmation.
Appeal Br. 13.
But the “‘mere automation of manual processes using generic
computers’ . . . ‘does not constitute a patentable improvement in computer
technology,’” Trading Techs. Int’l v. IBG LLC, 921 F.3d 1378, 1384 (Fed.
Cir. 2019) (quoting Credit Acceptance Corp. v. Westlake Servs., 859 F.3d
1044, 1055 (Fed. Cir. 2017). Moreover, “[u]sing a computer to accelerate an
ineligible mental process does not make that process patent-eligible.”
Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d
1266, 1279 (Fed. Cir. 2012); see also OIP Techs., Inc. v. Amazon.com, Inc.,
788 F.3d 1359, 1363 (Fed. Cir. 2015) (“[R]elying on a computer to perform
routine tasks more quickly or more accurately is insufficient to render a
claim patent eligible.”).
In the Reply Brief (2), Appellant notes that “[t]he remaining
limitations of Claim 21 are characterized in the Examiner's Answer as
directed to either ‘Certain methods of organizing human activity’ or ‘Mental
processes.’” Appellant contends: “As an initial matter, the Examiner
Answer cites no authority for the proposition that a claim purportedly
directed to multiple abstract ideas is non-statutory.” Reply Br. 2. Appellant
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notes that “[e]ach of the cases cited on page 9 of the Examiner’s Answer
involves a single abstract idea, not combinations of abstract ideas.” Reply
Br. 2–3.
To the extent that method claim 21 may include several steps that can
be performed alternatively as mental steps or involve a mathematical trading
algorithm, we note that combining several abstract ideas does not render the
combination any less abstract. See Final Act. RecogniCorp, LLC v.
Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract
idea (math) to another abstract idea . . . does not render the claim non-
abstract.”); see also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089,
1093–94 (Fed. Cir. 2016) (determining the pending claims were directed to a
combination of abstract ideas).
Based upon our review of claims 21–25, we agree with the Examiner
that under MPEP § 2106, Step 2A, Prong One, that at least the combined
buying and selling steps of claim 21 using “a legging risk trade execution
threshold specified by a user” fall under the abstract idea category of certain
methods of organizing human activity, including fundamental economic
principles or practices, and further including hedging and mitigating risk.
See MPEP §2106.04(a)(2), subsection II.
MPEP § 2106.04(a) guides that “[i]f the identified limitation(s) falls
within at least one of the groupings of abstract ideas, it is reasonable to
conclude that the claim recites an abstract idea in Step 2A Prong One.” In
such case, “[t]he claim then requires further analysis in Step 2A Prong Two,
to determine whether any additional elements in the claim integrate the
abstract idea into a practical application, see MPEP§ 2106.04(d).” MPEP
2106.04(a).
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Because claim 21 considered as a whole recites an abstract idea, we
conclude that all claims 21–25 recite an abstract idea, as identified above,
under Step 2A, Prong One. Therefore, we proceed to Step 2A, Prong Two,
in which we apply the guidance set forth under MPEP § 2106.04(d).
Step 2A, Prong Two under MPEP § 2106.04(d),
Integration of the Judicial Exception into a Practical Application
For example, limitations that are indicative of integration into a
practical application under MPEP § 2106.04(d) include:
1. Improvements to the functioning of a computer, or to any
other technology or technical field — see MPEP
§ 2106.05(a);
2. Applying the judicial exception with, or by use of, a
particular machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular article
to a different state or thing — see MPEP § 2106.05(c); and
4. Applying or using 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 — see MPEP
§ 2106.05(e).
In contrast, limitations that are not indicative of integration into a
practical application include:
1. Adding the words “apply it” (or an equivalent) with the
judicial exception, or merely including instructions to
implement an abstract idea on a computer, or merely uses a
computer as a tool to perform an abstract idea — see MPEP
§ 2106.05(f);
2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
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particular technological environment or field of use — see
MPEP § 2106.05(h).
See MPEP § 2106.04(d)(I)(Describing Step 2A, Prong Two).
Additional Limitations
Applying the USPTO guidance under MPEP § 2106.04(d), we
consider whether there are additional elements set forth in the claims that
integrate the judicial exception into a practical application.
As noted above, independent claim 21 requires the recited steps to be
implemented by a computer. We further note the supporting exemplary,
non-limiting descriptions of generic computer components found in the
Specification, for example, at paragraph 37:
As illustrated in Fig. 1, operating environment 100 includes
applications 105A-105N running on one or more computing
devices 110A-110M (such as a mobile device; a mobile phone; a
tablet computer; a mobile media device; a mobile gaming device;
a vehicle-based computer; a dedicated terminal; a public
terminal, desktop, or laptop computer; a kiosk; or wearable
technology).
Spec. ¶ 37 (emphasis added).
We emphasize that McRO, Inc. v. Bandai Namco Games America
Inc., 837 F.3d 1299 (Fed. Cir. 2016), guides: “The abstract idea exception
prevents patenting a result where ‘it matters not by what process or
machinery the result is accomplished.’” 837 F.3d at 1312 (quoting O’Reilly
v. Morse, 56 U.S. 62, 113 (1854)) (emphasis added).
Thus, we conclude Appellant’s claimed invention merely implements
the abstract idea using instructions executed on generic computer
components. Therefore, we conclude Appellant’s claims merely use a
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generic programmed computer as a tool to perform an abstract idea. See
MPEP § 2106.05(f).
Extra- or Post-Solution Activities under MPEP § 2106.05(g)
“[T]he prohibition against patenting abstract ideas ‘cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment’ or [by] adding ‘insignificant post-solution
activity.’” Bilski v. Kappos, 561 U.S. 593, 610–12 (2010) (quoting
Diamond v. Diehr, 450 U.S. 175, 191–92 (1981)).
Here, we conclude that independent claim 21 recites one or more
additional limitations that are extra-solution activities the courts have
determined to be insufficient to transform judicially excepted subject matter
into a patent-eligible application. See MPEP § 2106.05(g).
For example, we conclude that the claim 21 step that displays “a
plurality of electronic offers relating to a physical commodity” recites an
insignificant extra-solution activity (displaying data to a user). Cf. buySAFE
v. Google, Inc, 765 F.3d 1350, 1355 (Fed. Circ. 2014) (“That a computer
receives and sends the information over a network—with no further
specification—is not even arguably inventive.”). Therefore, we agree with
the Examiner’s categorization of the displaying step as insignificant extra-
solution activity, as specifically identified in the right column of the claim
chart shown on page 8 of the Answer.
Moreover, “[c]laim limitations directed to the content of information
and lacking a requisite functional relationship are not entitled to patentable
weight because such information is not patent eligible subject matter under
35 U.S.C. § 101.” Praxair Distrib., Inc. v. Mallinckrodt Hosp. Prods. IP
Ltd., 890 F.3d 1024, 1032 (Fed. Cir. 2018). As applicable to the displaying
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step of claim 21, the MPEP guides that if “the claim as a whole is directed to
conveying a message or meaning to a human reader independent of the
intended computer system, and/or the computer-readable medium merely
serves as a support for information or data, no functional relationship
exists.” MPEP § 2111.05 (III).
MPEP § 2106.05(a) — Improvement to the functionality of a
computer or other technology or technical field.
We consider next the question of whether there are any claimed
improvements to the functioning of a computer or to any other technology or
technical field. We apply the guidance set forth under MPEP § 2106.05(a).
Appellant contends:
Claim 21 as a whole reflects an improvement to a technology or
technical field: existing trading platforms result in missed
opportunities that are so short-lived as to preclude execution
when any user interaction is required, even just to confirm a
possible trade; and existing trading platforms also result in
missed opportunities-even for the option of manual selection via
the user interface-when the user is required to identify potential
trades via multiple platforms for buying/selling and for
transportation rather than displaying buy/sell and transportation
offers together. Claim 21 thus integrates the putative judicial
exception into a practical application, and recites patent-eligible
subject matter.
Appeal Br. 15 (emphasis added).
To the extent that Appellant’s method for “performing
multidimensional physical commodities trading based upon transportation
spreads” (claim 21) might arguendo be an improvement over prior art
methods, we note that an improved abstract idea is still an abstract idea. See
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66,
90 (2012) (holding that a novel and nonobvious claim directed to a purely
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abstract idea is, nonetheless patent-ineligible). See also Synopsys, Inc. v.
Mentor Graphics Corporation, 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“[A]
claim for a new abstract idea is still an abstract idea.”) (emphasis omitted).
In the Reply Brief, Appellant additionally cites to Trading
Technologies International, Inc. v. CQG, INC., 675 F. App’x 1001 (Fed. Cir.
2017)). See Reply Br. 2. However, we note that this particular Trading
Technologies case is non-precedential and therefore is not a binding
authority on the Board.
To the extent that the “user interface” recited in claim 21 displays: (1)
“a plurality of electronic offers” including “one or more transportation
offers” and, (2) Appellant’s method automatically executes buy, sell, and
transportation orders, we again emphasize that the “‘mere automation of
manual processes using generic computers’ . . . ‘does not constitute a
patentable improvement in computer technology,’” Trading Techs. Int’l, 921
F.3d at 1384 (quoting Credit Acceptance Corp, 859 F.3d at 1055. See Ans.
13 (citing Trading Techs. Int’l, 921 F.3d at 1384); see also Ans. 14
(distinguishing Appellant’s claims from the (different) non-precedential case
of Trading Technologies International, Inc. v. CQG.).
As set forth in MPEP § 2106.05(a) (emphasis added):
To show that the involvement of a computer assists in
improving the technology, the claims must recite the details
regarding how a computer aids the method, the extent to which
the computer aids the method, or the significance of a computer
to the performance of the method. Merely adding generic
computer components to perform the method is not sufficient.
Thus, the claim must include more than mere instructions to
perform the method on a generic component or machinery to
qualify as an improvement to an existing technology.
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Here, in reviewing the record, we find Appellant does not advance
any persuasive arguments explaining how the claimed generic computer
components aid the method, the extent to which the computer aids the
method, or the significance of a computer to the performance of the method
to improve the recited computer components. See MPEP § 2106.05(a).
Accordingly, on this record, we conclude that independent claim 21
does not recite an improvement to the functionality of a computer or other
technology or technical field. See MPEP § 2106.05(a).
MPEP § 2106.05(b), 2106.05(c)
Appellant additionally contends:
Claim 21 also implements the subject matter recited with, and
uses the subject matter in conjunction with, a particular machine
or manufacture that is integral to the claim. Specifically, Claim
21 recites a trading platform that allows the user to select trades
either manually (selecting each of a buy offer, a sell offer, and a
transportation offer) or by specifying a legging risk threshold for
use in evaluating permutations of buy, sell, and transportation
offers. Claim 21 thus recites a particular machine and, by such
recitations, patent-eligible subject matter.
Appeal Br. 15 (emphasis added).
We disagree with Appellant’s argument (id.) that method claims
21–25 recite a particular machine under MPEP § 2106.05(b). We have
emphasized above the supporting exemplary, non-limiting descriptions of
generic computer components found in the Specification, for example, at
paragraph 37. Therefore, we also find unavailing Appellant’s separate
argument that claim 23 recites a particular machine. See Appeal Br. 17.
Appellant advances no arguments that any of the method claims
21–25 on appeal transform an article to a different state or thing (MPEP
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§2106.05(c)). Therefore, the doctrine of forfeiture applies. See 37 C.F.R.
§ 41.37(c)(1)(iv).
MPEP § 2106.05(e) Meaningful Claim Limitations
The Examiner finds “[t]he claimed steps provide no meaningful limits
on the abstract ideas of receiving orders, receiving instructions to execute
the orders, monitoring information, calculating differentials, and executing
orders in order to make profit.” Final Act. 10.
Appellant advances no specific arguments that any of claims 21–25
recite meaningful limitations. In particular, we find Appellant does not
advance any substantive, persuasive arguments explaining how the judicial
exceptions are applied or used in some meaningful way, as clarified under
MPEP § 2106.05(e).
Simply adding generic hardware and computer components to
perform abstract ideas does not integrate those ideas into a practical
application, because the “mere recitation of a generic computer cannot
transform a patent-ineligible abstract idea into a patent-eligible invention.”
Alice, 573 U.S. at 223.
Preemption
Appellant additionally argues that “[c]laim 21, as a whole, is more
than a drafting effort designed to monopolize as judicial exception.” Appeal
Br. 15. Appellant avers that “[b]eing limited to trading platforms enabling
both manual selection of trades or automatic execution of trades satisfying a
legging risk threshold, [c]laim 21 leaves available the option of providing a
user interface allowing only one of those two means for selecting trades.” Id.
However, our reviewing court provides applicable guidance: “[w]hile
preemption may signal patent ineligible subject matter, the absence of
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complete preemption does not demonstrate patent eligibility.” 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. 2015) (“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”).
Accordingly, under Step 2A, Prong Two (MPEP § 2106.05(a)–(c) and
(e)–(h)), we conclude claims 21–25 do not integrate the judicial exception
into a practical application.
The Inventive Concept – Step 2B
As set forth under MPEP § 2106.05(d)), only if a claim (1) recites a
judicial exception, and (2) does not integrate that exception into a practical
application,8 do we then look, under Step 2B, to whether the claim: (3) adds
a specific limitation beyond the judicial exception that is not “well-
understood, routine, conventional activity” in the field; 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.9

8 This corresponds to Alice part one where it is determined whether the claim
is “directed to” an abstract idea. See Alice, 573 U.S. at 219. If a claim is
“not directed to an abstract idea under part one of the Alice framework, we
do not need to proceed to step two.” (Enfish, LLC v. Microsoft Corp., 822
F.3d 1327, 1339 (Fed. Cir. 2016).).
9 This corresponds to Alice part two where it is determined whether the
claim “contains an ‘inventive concept’ sufficient to ‘transform’ the claimed
abstract idea into a patent-eligible application.” Alice, 573 U.S. at 221.
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Under Step 2B, The Examiner finds:
The only additional element recited in the claims is the computer.
The claimed steps provide no meaningful limits on the abstract
ideas of receiving orders, receiving instructions to execute the
orders, monitoring information, calculating differentials, and
executing orders in order to make profit - which are WURC
[(Well-understood, Routine and Conventional)]. (See MPEP:
2016.05 (d)).
Final Act. 10.
Appellant responds in the Appeal Brief:
First, the record does not include evidence that all of the steps-
even as characterized by the Office Action (“receiving orders,
receiving instructions to execute the orders, monitoring
information, calculating differentials, and executing orders”) are
well-understood, routine and conventional as asserted in the
Office Action.
Appeal Br. 16 (emphasis added).
In response, the Examiner cites to Electric Power Group, LLC v.
Alstom S.A. (830 F.3d 1350 (Fed. Cir. 2016)) as Berkheimer evidence. See
Ans. 15–16. In particular, the Examiner finds:
As in Electric Power, the purported advance is a process of
continuously monitoring information relating a physical
commodity and not on any particular inventive technology for
performing them. The claims therefore do not state an arguably
inventive concept in the realm of application of the information-
based abstract ideas.
Ans. 16 (emphasis added).
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Appellant does not specifically traverse the Examiner’s Berkheimer
evidence in the Reply Brief.10 Therefore, on this record, we are not
persuaded that Appellant’s claims do more than simply append well-
understood, routine, and conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception. We
again emphasize that an improved abstract idea is still an abstract idea. See
Mayo, 566 U.S. at 90; see also Synopsys, 839 F.3d at 1151 (“[A] claim for a
new abstract idea is still an abstract idea.”) (emphasis omitted).
Moreover, because Appellant does not advance substantive,
persuasive arguments regarding any claimed nonconventional and non-
generic arrangement of known computer components, we find no inventive
concept in any purported ordered combination of these limitations. Thus,
we find Appellant’s claims are unlike the claims considered by the court in
BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341
(Fed. Cir. 2016)), in which the court found “an inventive concept . . . in the
non-conventional and non-generic arrangement of known, conventional
pieces.” 827 F.3d at 1350 (emphases added).
In light of the foregoing, we conclude that each of Appellant’s claims
21–25, considered as a whole, is directed to a patent-ineligible abstract idea
that is not integrated into a practical application, and does not include an
inventive concept. Therefore, on this record, we sustain the Examiner’s
rejection under 35 U.S.C. § 101 of claims 21–25.

10 In Berkheimer, the Federal Circuit held that “[w]hether something is well-
understood, routine, and conventional to a skilled artisan at the time of the
patent is a factual determination.” Berkheimer v. HP Inc., 881 F.3d 1360,
1369 (Fed. Cir. 2018).
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Rejection under 35 U.S.C. § 103 over Georges and Siddall
Issue: Under 35 U.S.C. § 103, did the Examiner err by finding that
the cited Georges and Siddall references would have collectively taught or
suggested a method comprising:
continuously monitoring the received plurality of electronic
offers aggregated at the computing system for any possible
combination of the aggregated electronic offers for which a
differential between a price of at least one of the received buy
offer(s) and a combined price of at least one of the received sell
offer(s) and at least one of the received transportation offer(s)
meets or exceeds the user-specified legging risk trade
execution threshold[,]
within the meaning of independent claim 21? (emphasis added regarding
disputed limitations).
In the Answer, the Examiner concludes “[i]t is not clear what the
claim limitation ‘user-specified legging risk trade execution threshold’ refers
to because there is no explicit mention of this feature in the Specification.”
Ans. 16–17. The Examiner finds the Specification does not “provide any
examples or embodiments of meeting or exceeding user specified legging
risk threshold.” Ans. 17. The Examiner avers: “Para [0061] and [0079]
only mention avoiding legging risk and also locking in a profit on the
hedge.” Id.
Appellant responds in the Reply Brief:
The Examiner's Answer asserts that the limitation “user-
specified legging risk trade execution threshold” is not
explicitly defined in the specification, and therefore may be
“interpreted” to have any meaning including a simple spread
between two contracts as described in Siddall. First, that
position ignores the claim language. The limitation requires a
“user-specified” threshold, not merely an existing spread
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between two contracts. As conceded in the Office Action, a
“legging risk” is explained in the specification as a
consideration-transportation costs in the claimed subject matter-
that can render a nominally profitable pair of trades
unprofitable. Siddall’s spread is insufficient to avoid legging
risk because it addressed the price difference between only two
contracts, and does not account for additional expense (such as
transportation cost).
Reply Br. 4–5.
Appellant further notes that “[c]laim 21 recites that ‘a differential
between a price of at least one of the received buy offer(s) and a combined
price of at least one of the received sell offer(s) and at least one of the
received transportation offer(s)’ must “meet[] or exceed[] the user-specified
legging risk trade execution threshold.” Reply Br. 5. Appellant clarifies:
“[t]hat is, the claim defines [a] ‘user-specified legging risk trade execution
threshold’ [that is] based on a difference between the combination of
purchase costs and transportation costs and sale price.” Id. Appellant urges
that “Siddall contains no suggestion of such a specific criteria for evaluating
possible combinations of offers.” Id.
In reviewing the Final Action, we note that the Examiner initially
maps the “transportation” features recited in claim 21 (and dependent claim
23) to Georges’ claim 11, and paragraphs 67–69. See Final Act. 16–19.
Turning to the evidence, we find Georges’ paragraphs 67–69 are silent
regarding any mention of transportation.
However, the Answer corrects the finding regarding Georges’ claim
11 as a typographical error: The “Examiner apologizes for the typographical
error - it should have been Claim 1 of Georges which discloses buy and sell
orders. Georges also discloses separate orders to specify transportation
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arrangements (See Para [0065]). Hence, it teaches the above limitation.”
Ans. 18 (emphasis added).
Turning to the evidence relied upon by the Examiner (id.), we note
that Georges’ claim 1 recites in pertinent part:
1. A system for trading a physical commodity that is
geographically dispersed or of variable quality, the system
including: a market maker component operative to maintain
price data representing a buy price and a sell price for trading
the commodity, that is constant with respect to: (i) the pickup
and delivery locations of the commodity if the commodity is
geographically dispersed;
Georges, ¶ 87, claim 1.
We find the term “geographically dispersed” as recited in Georges’
claim 1 is insufficient, without more, to teach or suggest the claimed
transportation offer, much less a transportation offer that meets or exceeds
the user-specified legging risk trade execution threshold, as required by the
language of claim 21 (emphasis added).
Although paragraph 65 of Georges describes that “the option to
specify delivery is only a separate transportation arrangement or appendix
that is separate to the generalised [(Brit. sp.)] commodity,” without more, we
find a preponderance of the evidence supports Appellant’s arguments as
reproduced above from the Reply Brief (4–5).
Nor has the Examiner established on this record that Siddall cures the
aforementioned deficiency of Georges. Even if arguendo Siddall at least
suggests a legging risk trade execution threshold, the Examiner has not
fully developed the record to establish how such threshold is user-specified,
as required by the language of sole independent claim 21.
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For at least these reasons, we are constrained on this record to reverse
the Examiner’s obviousness rejection of sole independent claim 21. Because
we have reversed the Examiner’s rejection under 35 U.S.C. § 103 of
independent claim 21, we also reverse the Examiner’s obviousness rejection
over Georges and Siddall of associated dependent claims 22–25.

CONCLUSIONS
By applying the Director’s 2019 PEG and October 2019 Update, as
now set forth under MPEP Sections 2103 through 2106.07(c), we conclude
that all claims 21–25, as rejected by the Examiner under 35 U.S.C. § 101,
are not directed to patent-eligible subject matter.
The Examiner erred in rejecting claims 21–25 as being obvious under
35 U.S.C. § 103 over the combined teachings and suggestions of the cited
Georges and Siddall references.

DECISION SUMMARY
Claims
Rejected
35 U.S.C
§
Reference(s)/Basis Affirmed Reversed
21–25 101 Eligibility 21–25
21–25 103 Georges, Siddall 21–25
Overall
Outcome
21–25

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FINALITY AND RESPONSE
Because we have sustained at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner’s rejection. See 37
C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See
37 C.F.R. § 41.50(f).
AFFIRMED