Lutnick, Howard W. et al.

Patent Trials and Appeals Board

Mar 31, 2020

13399583 - (D) (P.T.A.B. Mar. 31, 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.
13/399,583 02/17/2012 Howard W. Lutnick 07-2102-C1 4324
63710 7590 03/31/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
SHAIKH, MOHAMMAD Z
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
03/31/2020 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):
lkorovich@cantor.com
patentdocketing@cantor.com
phowe@cantor.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HOWARD W. LUTNICK,
JOSEPH NOVIELLO and
MICHAEL SWEETING
___________

Appeal 2019-002828
Application 13/399,583
Technology Center 3600
____________

Before CARL W. WHITEHEAD JR., SHARON FENICK,
and RUSSELL E. CASS, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 is appealing the final rejection of claims 1-11, 32-33, 35-
42, and 44 under 35 U.S.C. § 134(a). Appeal Brief 9. We have jurisdiction
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). Appellant identifies BGC PARTNERS, INC, as the real party in
interest. Appeal Br. 3.
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Introduction
According to Appellant, the invention is directed to “electronic
systems and methods for obtaining trading exclusivity and/or trading priority
in electronic trading systems.” Specification ¶ 76.
Representative Claim
Claims 1, 32, 33 and 44 are independent. Claim 1 is reproduced here,
with bracketing added for reference.
1. A method for facilitating an electronic trading system over a network
with interfaces of computing devices, the method comprising:
[1] transitioning, by at least one processor of a computing device of an
electronic trading system, the electronic trading system from a first state to a
second state;
[2] awarding, by the at least one processor of the computing device of
the electronic trading system, through an interface of a computing device of
a first participant, the first participant and, an interface of a computing
device of a second participant, the second participant with trading priority in
the second state with respect to an incoming contra order responsive to the
second participant satisfying a status of trading rights in the first state and
responsive to the second participant satisfying one or more predetermined
criteria in the first state;
[3] providing, by the at least one processor of the computing device of
the electronic trading system, through the interface of the computing device
of the second participant, to the second participant with an option to obtain
exclusive trading priority in the second state with respect to the incoming
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contra order based at least in part on the second participant satisfying the
status of trading rights in the first state and the second participant satisfying
the one or more predetermined criteria in the first state, in which the second
participant satisfies the status of trading rights in the first state when the
second participant has no existing best order and made a trade in the first
state; and
[4] determining, by the at least one processor of the computing device
of the electronic trading system, whether an incoming order it clear to trade,
generating by the at least one processor of the computing device of the
electronic trading system, electronic commands to update graphical windows
of the interfaces of the computing devices of the first and second participants
with visual indicators adjacent to displayed prices associated with new
displayed orders.
Appeal Brief 18 (Claims Appendix).

References
Name2 Reference Date
Fraser US 2004/0210512 A1 October 21, 2004
Lutnick US 2005/0216393 A1 September 29, 2005
West US 7,565,317 B1 July 21, 2009
Rejections on Appeal
Claims 1, 3-11, 32, 33, 35-42 and 44 stand rejected under 35 U.S.C.
§ 101 as being directed to patent-ineligible subject matter. Final Action 13–
18.

2 All reference citations are to the first named inventor only.
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Claims 1, 3, 5, 6, 8-11, 32, 33, 36-39, 41 and 42 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Fraser and West. Final
Action 54–66.
Claims 4, 7, 35 and 40 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Fraser, West and Lutnick. Final Action 67–69.

ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed November 19, 2018), the Reply Brief
(filed February 25, 2019), the Final Action (mailed July 2, 2018) and the
Answer (mailed December 26, 2018), for the respective details.

PRINCIPLES OF LAW
A. Section 101
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 U.S. 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. E.g., Alice Corp. v. CLS Bank Int’l, 573
U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Court’s two-part 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
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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, 191
(1981)); “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); 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
Court held that “a claim drawn to subject matter otherwise statutory does not
become nonstatutory simply because it uses a mathematical formula.”
Diehr, 450 U.S. at 187; 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 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. (citation omitted)
(citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that
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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 part
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 (quotation marks 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 77). “[M]erely
requir[ing] generic computer implementation[] fail[s] to transform that
abstract idea into a patent-eligible invention.” Id.
B. USPTO Section 101 Guidance
In January 2019, the U.S. Patent and Trademark Office (USPTO)
published revised guidance on the application of § 101. 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019)
(“2019 Revised Guidance”).3 “All USPTO personnel are, as a matter of
internal agency management, expected to follow the guidance.” Id. at 51;
see also October 2019 Update at 1.
Under the 2019 Revised Guidance and the October 2019 Update, we
first look to whether the claim recites:

3 In response to received public comments, the Office issued further
guidance on October 17, 2019, clarifying the 2019 Revised Guidance.
USPTO, October 2019 Update: Subject Matter Eligibility (the “October
2019 Update”) (available at
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df).
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(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 (see MPEP § 2106.05(a)–(c), (e)–(h) (9th ed.
Rev. 08.2017, Jan. 2018)) (“Step 2A, Prong Two”).4
2019 Revised Guidance, 84 Fed. Reg. at 52–55.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, 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” 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.
2019 Revised Guidance, 84 Fed. Reg. at 52–56.

35 U.S.C. § 101 Rejection

4 This evaluation is performed 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. See 2019 Revised Guidance - Section III(A)(2), 84
Fed. Reg. 54–55.
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The Examiner determines the claims are patent ineligible under
35 U.S.C. § 101. See Final Action 13–14. We agree with the Examiner’s
determination because the claims are directed to an abstract idea comprising
commercial or legal interactions (marketing or sales activities or behaviors;
business relations) – one of the certain methods of organizing human activity
set forth in the 2019 Revised Guidance, and do not include additional
elements that are sufficient to amount to significantly more than the abstract
idea. See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014)
(describing the two–step framework “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent–eligible applications of those concepts”); 2019 Revised Guidance at
52; Final Action 15 (“The claimed invention is directed to the abstract idea
of assigning trading priority to a first and second trader engaging in the
trading of contra orders.”).
We are not persuaded the Examiner’s rejection is in error. Unless
otherwise indicated, we adopt the Examiner’s findings and conclusions as
our own. We add the following primarily for emphasis and clarification
with respect to the 2019 Revised Guidance.
Alice/Mayo—Step 1 (Abstract Idea)
Step 2A–Prongs 1 and 2 identified in the 2019 Revised Guidance
Step 2A, Prong One
The Specification discloses in the Background of the Invention that:
In electronic trading systems that include bids and offers
for items, a bid or offer that is entered by a participant may
typically be entered as available (referred to alternatively
hereinafter as “clear”) to trade to other participants.
Nevertheless, certain known trading systems may restrict the
availability to certain participant(s) under certain conditions.
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Specification ¶ 77.
The Specification also discloses, “[i]t would be desirable to provide
systems and methods that further define the rules or conditions that govern
the interaction between trading participants when the system transitions from
one trading state to a second trading state.” Specification ¶ 80.
The Specification further discloses:
In one aspect of the invention, trading rules according to the
invention disclosed herein relate to being “first-on-the-follow.”
These first-on-the-follow rules relate to the respective priority of
participants following the transition from a first trading state to a
second trading state (for the purposes of this application, a
trading state is defined as a set of rules or conditions that govern
the interaction between trading participants — transition from
one trading state to a second trading state signifies transitioning
from one set of rules or conditions to a second set of rules or
conditions). First-on-the-follow rules relate in large part to
identifying the participant that will have the right to trade
exclusively (semi–exclusively) — i.e., the exclusive bidder on
incoming offers and the exclusive offeror on incoming bids — at
the commencement of the new state.
Specification ¶ 88 (emphasis added).
Claim 1 recites a method for facilitating electronic trading over a
network with interfaces of computing devices:
[2] awarding . . . the first participant and . . . the second
participant with trading priority in the second state with respect
to an incoming contra order responsive to the second participant
satisfying a status of trading rights in the first state and
responsive to the second participant satisfying one or more
predetermined criteria in the first state;
[3] providing . . . the second participant with an option to obtain
exclusive trading priority in the second state with respect to the
incoming contra order based at least in part on the second
participant satisfying the status of trading rights in the first state
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and the second participant satisfying the one or more
predetermined criteria in the first state, in which the second
participant satisfies the status of trading rights in the first state
when the second participant has no existing best order and made
a trade in the first state; and
[4] determining . . . whether an incoming order it clear to trade.
These steps comprise managing commercial or legal interactions
(marketing or sales activities or behaviors; business relations); thus, the
claim recites the abstract idea of “certain methods of organizing human
activity.” 2019 Revised Guidance, Section I (Groupings of Abstract Ideas);
see Specification ¶¶ 81-82. Our reviewing court has found claims to be
directed to abstract ideas when they recited similar subject matter. See
Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Can Canada (U.S.), 687
F.3d 1266, 1280 (Fed. Cir. 2012) (concluding that “managing a stable value
protected life insurance policy by performing calculations and manipulating
the results” is an abstract idea); 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 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,
859 F.3d 1044 at 1054 (“The Board determined that the claims are directed
to the abstract idea of ‘processing an application for financing a purchase.’
. . . We agree.”). Therefore, we conclude the claims recite an abstract idea
pursuant to Step 2A, Prong One. See 2019 Revised Guidance, Section
III(A)(1) (Prong One: Evaluate Whether the Claim Recites a Judicial
Exception).

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Step 2A, Prong Two
Under Prong Two of the 2019 Revised Guidance, we must determine
“whether the claim as a whole integrates the recited judicial exception
into a practical application of the exception.” [I]t is noted that a “claim that
integrates a judicial exception into a practical application will apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” 2019 Revised Guidance,
Section III(A)(2).
Appellant argues:
[T]he claimed subject matter is directed to improvements in
computer performance particularly by facilitating an
electronic trading system over a network with interfaces of
computing devices including updating windows with visual
indicators based on incoming orders which may help control
activity over the network and control computer workload
including computer resources such as memory resources,
processor resources, and network resources such as network
bandwidth.
Appeal Brief 12.
Appellant further argues:
As with the patents upheld in CoreWireless5, Appellant
respectfully submits that Appellant’s claimed subject matter is
also drawn to an improved user interface which provides
advantages over prior art systems which improves the
efficiency of the electronic devices, thereby overcoming
disadvantages of prior art systems. For example, in the present
case, the paragraphs highlighted above describes some of the
problems disadvantages or problems with current prior art

5 Core Wireless Licensing S.A.R.L. v. LG Electronics MobileComm U.S.A.,
Inc., 880 F.3d 1356 (Fed. Cir. 2018).
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systems some of the advantages provided by Appellants’
disclosed techniques.
Appeal Brief 13.
Claim 1 broadly recites “electronic commands to update graphical
windows of the interfaces of the computing devices of the first and second
participants with visual indicators adjacent to displayed prices associated
with new displayed orders.” Thus, the claim’s recitation of displaying data
is unlike patent-eligible claims directed to displaying data such as the
claimed user interface in Core Wireless. In Core Wireless, the court held
that claims which recited an interface were patent eligible because the claims
recited specific limitations of the interface such as: an application summary
that can be reached through a menu, the data being in a list and being
selectable to launch an application, and additional limitations directed to the
actual user interface displayed and how it functions. Core Wireless, 880
F.3d at 1363. The court found that the claims were directed to an improved
user interface and not the abstract concept of an index as the claim
“limitations disclose a specific manner of displaying a limited set of
information to the user, rather than using conventional user interface
methods to display a generic index on a computer.” Core Wireless at 1363;
see also Trading Tech v. CQG, Inc., 675 Fed. App’x 1001 (Fed. Cir. 2017)
(Holding that a user interface with a prescribed functionality directly related
to the interface’s structure, that is addressed to and resolves a problem in the
art, is patent eligible.). In Appellant’s claim 1, there are no limitations
directed to a specific manner of displaying a limited set of information to the
user or to how the user interacts with the displayed data and, therefore, we
find Appellant’s arguments unpersuasive.
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Moreover, we detect no additional element (or combination of
elements) recited in Appellant’s representative claim 1 that integrates the
judicial exception into a practical application. See 2019 Revised Guidance,
Section III(A)(2). For example, Appellant’s claimed additional elements
(e.g., processor, computing device, graphical windows) do not: (1) improve
the functioning of a computer or other technology; (2) are not applied with
any particular machine (except for a generic computer device); (3) do not
effect a transformation of a particular article to a different state; and (4) are
not applied in any 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(a)–(c), (e)–(h).
Accordingly, we determine the claim does not integrate the recited
judicial exception into a practical application. See 2019 Revised Guidance,
Section III(A)(2) (Prong Two: If the Claim Recites a Judicial Exception,
Evaluate Whether the Judicial Exception Is Integrated Into a Practical
Application).

Alice/Mayo—Step 2 (Inventive Concept)
Step 2B identified in the 2019 Revised Guidance
Step 2B
Next, we determine whether the claim includes additional elements
that provide significantly more than the recited judicial exception, thereby
providing an inventive concept. Alice, 573 U.S. at 217–18 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 72–73 (2012)).
Appellant argues that “the ‘significantly more’ analysis in the Office
Action is not consistent with the USPTO guidelines (Berkheimer v. HP, Inc.)
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of April 19, 2018.” Appeal Brief 13; see USPTO Memorandum, Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) (April 19,
2018), available at https://www.uspto.gov/sites/default/files/documents/
memo-berkheimer-20180419.PDF (“Berkheimer Memorandum”). Appellant
further argues:
[T]he claimed invention, in one example, recites an additional
element (or combination of elements) that are “not well-
understood, routine or conventional” to facilitate an
electronic trading system over a network with interfaces of
computing devices including updating windows with visual
indicators based on incoming orders. Appellant respectfully
submits that the claimed features above are “not well-
understood, routine or conventional” for at least the reasons
provided above. Appellant respectfully submits that the Office
Action does not expressly support this rejection and therefore
fails to meet the guidelines above.
Appeal Brief 13.
The 2019 Revised Guidance states:
In accordance with existing guidance, an examiner’s
conclusion that an additional element (or combination of
elements) is well understood, routine, conventional activity must
be supported with a factual determination. For more information
concerning evaluation of well-understood, routine, conventional
activity, see MPEP 2106.05(d), as modified by the USPTO
Berkheimer Memorandum.
2019 Revised Guidance, 84 Fed. Reg. 56 n.36 (Section III(B)) (emphasis
added).
The Berkheimer Memorandum Section III(A) states when formulating
rejections, “[i]n a step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds, and expressly supports a rejection in writing.” Berkheimer
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Memorandum at 3. The Berkheimer Memorandum provides four criteria for
the Examiner to utilize to provide support for the additional elements to be
considered to be well–understood, routine or conventional.6
The Examiner determines, “The instant application, therefore, still
appears only to implement the abstract idea to the particular technological
environments using what is well-understood, routine, and conventional in
the related arts.” Final Action 23. The Examiner supports the determination
by citing to Appellant’s Specification and to one or more court decisions.
See Final Action 18-23. By doing so, we determine that the Examiner has
sufficiently established that the additional elements are well-understood,
routine, or conventional as required by the Berkheimer Memorandum.
Appellant does not challenge the Examiner’s position that the additional
elements are well-understood, routine or conventional with any specificity.
See Appeal Brief 13. We do not find Appellant’s argument persuasive
because, in determining if the additional element (or combination of
additional elements) represents well-understood, routine, conventional
activity, the Examiner supported the determination based upon a factual

6 Berkheimer Memorandum at 3–4 (Section III(A)) (“1. A citation to an
express statement in the specification or to a statement made by an applicant
during prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s) . . . . 2. A citation to one or
more of the court decisions discussed in MPEP § 2106.05(d)(II) as noting
the well-understood, routine, conventional nature of the additional
element(s). . . . 3. A citation to a publication that demonstrates the well-
understood, routine, conventional nature of the additional element(s) . . . .
4. A statement that the examiner is taking official notice of the well-
understood, routine, conventional nature of the additional element(s).”).

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determination as specified in the Berkheimer Memorandum. See
Berkheimer Memorandum at 3–4 (Section III(A)(1), (2)).
Further, in Bascom, our reviewing court found that while the claims of
the patent were directed to an abstract idea, the patentee alleged an
“inventive concept can be found in the ordered combination of the claim
limitations that transform the abstract idea of filtering content into a
particular, practical application of that abstract idea.” Bascom, 827 F.3d at
1352. In particular, the patent in Bascom claimed “a technology-based
solution (not an abstract-idea-based solution implemented with generic
technical components in a conventional way) to filter content on the Internet
that overcomes existing problems with other Internet filtering systems.”
Bascom at 1351. Claim 1 is distinguishable, as it recites an abstract-idea-
based solution, that is, an electronic trading method, implemented with
generic technical components (processor, computing device, graphical
windows), in a conventional way. See generally Specification. Therefore,
we are not persuaded that ordered combinations of steps in representative
claim 1 provide an inventive concept. See 2019 Revised Guidance at 56.
Accordingly, we conclude claims 1, 3-11, 32, 33, 35-42 and 44 are
directed to managing commercial or legal interactions (marketing or sales
activities or behaviors; business relations), which are considered methods of
organizing human activity identified in the 2019 Revised Guidance and thus
an abstract idea. We also determine that the claims do not recite limitations
that integrate the abstract idea into a practical application or amount to
significantly more than the abstract idea itself. We, therefore, sustain the
Examiner’s § 101 rejection of claims 1, 3–11, 32, 33, 35–42, and 44.

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35 U.S.C. § 103 Rejection
Appellant contends:
For example, cited portions of West (column 10, lines 6-7) relate
to “user placed price movement indicators after the market
has shifted up.” In contrast, claim 1, as well as the other
independent claims, of the present application recites “visual
indicators adjacent to displayed prices associated with new
displayed orders.” In other words, the claimed invention recites
indicators associated with orders which is not the same as
indicators associated with price movements as disclosed in
West. Therefore, Appellant respectfully submits for at least this
reason the cited portions of the cited references, alone or in
combination, fail to teach or suggest the claimed invention of the
present application.
Appeal Brief 15.
The Specification discloses, “Typically, an incoming order that is not
clear to trade is indicated by a visual indicator -- e.g., an asterisk preferably
adjacent to the price associated with the new order (See, asterisk adjacent to
price 304 in FIG. 3).” Specification ¶ 107. The Examiner finds that West
discloses a visual indicator adjacent to displayed prices associated with new
displayed orders as claimed. See Final Action 56 (citing West’s Figure 4,
element 410; column 3, lines 25-30, 40-41; column 4, lines 26-35; column 7,
lines 42-56, column 8, lines 32-60 and column 10, lines 3-23). West
additionally discloses, “The trading screen 400 also shows additional
parameters, such as a working quantity column 408 that illustrates a traders
working order icons” (West column 8, lines 42-44), and “It should be
understood that additional indicators could be provided in relation to trading
screen 400, and what is actually shown in trading screen 400 may be user
configurable” (West column 8, lines 53-56). It is noted that “The
combination of familiar elements according to known methods is likely to be
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obvious when it does no more than yield predictable results.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 416 (2007). Accordingly, we do not find
Appellant’s argument persuasive of Examiner error because we find
modifying Fraser by incorporating visual indicators, as taught by West, is
well within the purview of one of ordinary skill in the art. We, therefore,
sustain the Examiner’s obviousness rejection of independent claim 1, as well
as the rejection of independent claims 32, 33 and 44, which are not
separately argued. See Appeal Brief 16 (“Appellant submits that claims 32,
33 and 44 recite statutory subject matter for at least the same reasons
discussed above in reference to claim 1.”). We also sustain the Examiner’s
obviousness rejections of the dependent claims, which also are not
separately argued. See Appeal Brief 16 (“Aspects of the dependent claims
may be compared with their respective base claims.”).

CONCLUSION
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3-11, 32,
33, 35-42,
44
101 Eligibility 1, 3-11,
32, 33, 35-
42, 44

1, 3, 5, 6, 8-
11, 32, 33,
36-39, 41,
42
103 Fraser, West 1, 3, 5, 6,
8-11, 32,
33, 36-39,
41, 42

4, 7, 35, 40 103 Fraser, West,
Lutnick
4, 7, 35,
40

Appeal 2019-002828
Application 13/399,583

19

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.
§ 1.136(a)(1)(v).

AFFIRMED