Michael Gooch et al.

Patent Trials and Appeals Board

Oct 7, 2019

11011883 - (D) (P.T.A.B. Oct. 7, 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.
11/011,883 12/13/2004 Michael Gooch 03-2438US 6624
63710 7590 10/07/2019
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
10/07/2019 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):
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 MICHAEL GOOCH and MICHAEL EVERAERT
____________________

Appeal 2018-004639
Application 11/011,8831
Technology Center 3600
____________________
Before ALLEN R. MacDONALD, MICHAEL J. ENGLE, and
IFTIKHAR AHMED, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 6–31, 33, 34, 36–41, 46–58, and 60–68, which are all of the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Technology
The application relates to “providing integrated credit derivative
brokerage services,” including a “Trade Management Service (TMS)
Application Programming Interface (API).” Spec. 2:11–13.

1 According to Appellants, the real party in interest is GFI Group, Inc. App.
Br. 3.
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Illustrative Claim
Claim 1 is illustrative and reproduced below with certain limitations at
issue emphasized:
1. A computer network system providing integrated credit
derivative brokerage services, comprising:
a computer network system, which provides integrated
credit derivative brokerage services, including a network
arrangement having internet access, the network arrangement
including:
a credit default swap (CDS) module providing
trading, trade capture, confirmations, maintenance of
reference data, and reporting, the CDS arrangement
including a CDS database (CDS DB), and the CDS
module includes a workspace configured to organize
logically market and product data, a price sheet
configured to group together related products within the
workspace, a trade log configured to display trading
details, an order book configured to display and manage at
least one of open and cancelled orders, and a trader’s eye
function configured to display the market from the
perspective of a specific trader;
a credit market portal module providing a customer
front end of real-time credit market data, and providing a
historical reporting and search facility to at least one of
brokers and traders;
a credit market mart module providing a credit data
mart disseminating realtime credit market data, the credit
mart arrangement serving as a data source of the credit
market portal module, which provides a customer-facing
front end to access real-time credit market data;
a credit editor module providing a data-cleansing
interface to the credit market mart module accessed via the
credit market portal module;
a credit trading capture (CTC) module, having an
associated back-end CTS database (CTS DB), providing
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order management and an authoritative source of realtime,
electronic orders of credit default swaps for the CDS
module;
a credit trade capture (CTC) system module
providing a middle-office trade capture and confirmation
system;
a data depot (DD) module centrally storing all of the
credit market data; and
a market data processor (MDP) module that
collects, transforms, and formats the market data, wherein
the MDP is a trade management service (TMS) client and
a price broadcast service (PBS) client;
wherein each of the modules includes a computer
program which is stored on a non-transitory computer
readable medium and which is executable by at least one
computer in the network arrangement;
wherein to create the trade, the system is configured
to look up a factory class, invoke the factory class to
instantiate a manager class, and invoke the manager class
with trade data to perform the trade creation,
wherein the system is configured to query at least
one of an individual trade and a collection of trades using
the trade management service module, and
wherein to query at least one of the individual trade
and the collection of trades, the system is configured to
look up a factory class, invoke the factory class to
instantiate a manager class, invoke the manager class to
instantiate a query manager class, and invoke the query
manager class to perform a trade query for pending data
regarding the at least one of the individual trade and the
collection of trades.
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Rejections
Claims 1, 6–31, 33, 34, 36–41, 46–58, and 60–68 stand rejected under
35 U.S.C. § 101 as being directed to ineligible subject matter without
significantly more. Final Act. 4.
Claims 1, 38, and 68 stand rejected under 35 U.S.C. § 112, first
paragraph as failing to comply with the written description requirement.
Final Act. 3.
ISSUES
1. Did the Examiner err in concluding that claim 1 was directed to
patent-ineligible subject matter without significantly more under § 101?
2. Did the Examiner err in finding “a workspace configured to
organize logically market and product data” as recited in claim 1 lacks
sufficient written description under § 112?
ANALYSIS
§ 101: Subject Matter
The Supreme Court has “long held that [§ 101] contains an important
implicit exception” that “[l]aws of nature, natural phenomena, and abstract
ideas are not patentable.” Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (quotation omitted). To determine patentable
subject matter, the Supreme Court has set forth a two-part test.
“First, we determine whether the claims at issue are directed to one of
those patent-ineligible concepts” of “laws of nature, natural phenomena, and
abstract ideas.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014).
“The inquiry often is whether the claims are directed to ‘a specific means or
method’ for improving technology or whether they are simply directed to an
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abstract end-result.” RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322,
1326 (Fed. Cir. 2017). A court must be cognizant that “all inventions at
some level embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas” (Mayo, 566 U.S. at 71), and “describing the
claims at . . . a high level of abstraction and untethered from the language of
the claims all but ensures that the exceptions to § 101 swallow the rule.”
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1337 (Fed. Cir. 2016).
Instead, “the claims are considered in their entirety to ascertain whether their
character as a whole is directed to excluded subject matter.” Internet
Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015).
If the claims are directed to an abstract idea or other ineligible
concept, then we continue to the second step and “consider the elements of
each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S.
at 79, 78). The Supreme Court has “described step two of this analysis as a
search for an ‘inventive concept’—i.e., an element or combination of
elements that is sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the ineligible concept itself.” Id. at
217–18 (quotation omitted).
The U.S. Patent & Trademark Office recently published revised
guidance on the application of § 101. USPTO, 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised
Guidance”). Under the Revised Guidance, we look to whether the claim
recites
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(1) a judicial exception, such as a law of nature or any of the
following groupings of abstract ideas:
(a) mathematical concepts, such as mathematical formulas;
(b) certain methods of organizing human activity, such as a
fundamental economic practice; or
(c) mental processes, such as an observation or evaluation
performed in the human mind;
(2) any additional limitations that integrate the judicial exception
into a practical application (see MPEP § 2106.05(a)–(c), (e)–(h));
and
(3) any additional limitations beyond the judicial exception that,
alone or in combination, were not “well-understood, routine,
conventional” in the field (see MPEP § 2106.05(d)).
See Revised Guidance 52, 55, 56. Under the Revised Guidance, if the claim
does not recite a judicial exception, then it is eligible under § 101 and no
further analysis is necessary. Id. at 54. Similarly, under the Revised
Guidance, “if the claim as a whole integrates the recited judicial exception
into a practical application of that exception,” then no further analysis is
necessary. Id. at 53, 54.
“Eligibility under 35 U.S.C. § 101 is a question of law, based on
underlying facts.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1166
(Fed. Cir. 2018).
A) USPTO Step 2A, Prong 1
Step 2A, Prong 1 of the Revised Guidance asks “whether the claim
recites a judicial exception.” Revised Guidance 54. “To determine whether
a claim recites an abstract idea in Prong One, examiners are now to
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(a) Identify the specific limitation(s) in the claim under examination
(individually or in combination) that the examiner believes recites an
abstract idea; and (b) determine whether the identified limitation(s) falls
within the subject matter groupings of abstract ideas enumerated in Section I
of the [Revised Guidance].” Id.
Here, the Examiner determines that “the claims are directed toward
providing a marketplace for trading credit default swaps and other financial
instruments” and that such trading is “a fundamental economic practice”
“using categories to organize, store, and transmit information.” Final Act. 6.
Appellants concede that “the present claims and some of [the] cited
cases may involve elements related to economics and/or trading to some
degree,” but Appellants cite to Trading Technologies International, Inc. v.
CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017) (non-precedential), as proof
that not all claims “related to trading or economics are abstract without
more.” App. Br. 9.
Claim 1 recites “a computer network system, which provides
integrated credit derivative brokerage services,” including (1) “a credit
market portal module providing a customer front end of real-time credit
market data” and (2) “a credit default swap (CDS) module providing trading,
trade capture, confirmations, maintenance of reference data, and reporting”
in which “the CDS module includes a workspace configured to organize
logically market and product data.” Thus, claim 1 recites a graphical user
interface for trading credit default swaps.
The Specification similarly explains under “FIELD OF THE
INVENTION” that “[t]he present invention relates to a method and system
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for providing integrated credit derivative brokerage services.” Spec. 2:11–
13. Under “SUMMARY OF THE INVENTION,” the Specification states:
An exemplary method and system of the present invention is for
providing electronic-based credit trading that integrates pre-
trade, trading, and post-trade activities and enables brokers, for
example, to enter and display quotes, manage their traders’ order
portfolios, investigate market depth, and execute transactions for
any available entity or interest using, for example, feeds to/from
analytic calculators, trader spreadsheets, electronic
confirmations, and other accounting platforms.
Spec. 3:5–10.
For Prong 1, we agree with the Examiner that the claims at least recite
certain methods of organizing human activity, specifically an interface for a
fundamental economic practice of trading. See Revised Guidance 52. The
recent precedential decision in Trading Technologies International, Inc. v.
IBG LLC, 921 F.3d 1084 (Fed. Cir. 2019), is instructive. That case
involved, in part, “a user interface for an electronic trading system that
allows a remote trader to view trends in the orders for an item, and provides
the trading information in an easy to see and interpret graphical format.” Id.
at 1087 (quotation omitted). Under Alice Step 1, the Federal Circuit agreed
with the Board that the claims were “directed to the abstract idea of graphing
(or displaying) bids and offers to assist a trader to make an order” and
“placing an order based on displayed market information is a fundamental
economic practice.” Id. at 1092 (quotation omitted). “The fact that the
claims add a degree of particularity as to how an order is placed in this case
does not impact our analysis at step one.” Id. The same is true here. Given
that the Federal Circuit held the claims for a trading interface in Trading
Technologies v. IBG were directed to an abstract idea, the claims for a
trading interface here at least recite an abstract idea.
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Thus, consistent with case law, the Revised Guidance, and the
Specification, we conclude that the claims recite certain methods of
organizing human activity, which constitute an abstract idea.
B) USPTO Step 2A, Prong 2
We next turn to “whether the claim as a whole integrates the recited
judicial exception into a practical application.” Revised Guidance 54.
“Examiners evaluate integration into a practical application by:
(a) Identifying whether there are any additional elements recited in the claim
beyond the judicial exception(s); and (b) evaluating those additional
elements individually and in combination to determine whether they
integrate the exception into a practical application.” Id. at 54–55.
Here, outside of the abstract idea, claim 1 further recites “to create the
trade, the system is configured to look up a factory class, invoke the factory
class to instantiate a manager class, and invoke the manager class with trade
data to perform the trade creation,” and “to query at least one of the
individual trade and the collection of trades, the system is configured to look
up a factory class, invoke the factory class to instantiate a manager class,
invoke the manager class to instantiate a query manager class, and invoke
the query manager class to perform a trade query for pending data regarding
the at least one of the individual trade and the collection of trades.”
In this respect, the claims are more analogous to Appellants’ cited
case of Trading Technologies v. CQG, in which “the challenged patents do
not simply claim displaying information on a graphical user interface” but
rather “require a specific, structured graphical user interface paired with a
prescribed functionality directly related to the graphical user interface’s
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structure.” 675 F. App’x at 1004. “[S]pecific technologic modifications to
solve a problem or improve the functioning of a known system generally
produce patent-eligible subject matter.” Id. at 1004–05.
The claims here recite a specific arrangement of classes and the
invocation or instantiation of those classes that integrates the judicial
exception into a practical application. Put another way, even though the
claims recite an abstract idea, the claims are not directed to that abstract idea
because they also recite a specific technical process (e.g., invoking or
instantiating particular classes). Apple, Inc. v. Ameranth, Inc., 842 F.3d
1229, 1241 (Fed. Cir. 2016) (“The Supreme Court has recognized that all
inventions embody, use, reflect, rest upon, or apply laws of nature, natural
phenomena, or abstract ideas. But not all claims are directed to an abstract
idea.” (quotation omitted)).
To be clear, we make no holding as to whether the claims are novel
under § 102, are non-obvious under § 103, or involve means-plus-function
“modules” under § 112, as those are separate inquiries under patent law.
E.g., Diamond v. Diehr, 450 U.S. 175, 188–89 (1981) (“The ‘novelty’ of any
element or steps in a process, or even of the process itself, is of no relevance
in determining whether the subject matter of a claim falls within the § 101
categories of possibly patentable subject matter.”). However, solely for
purposes of § 101, we hold that the claims here include significantly more
than the abstract idea.
Accordingly, we do not sustain the Examiner’s rejection of claims 1,
6–31, 33, 34, 36–41, 46–58, and 60–68 under § 101.
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§ 112: Written Description
All of the independent claims (1, 38, and 68) recite “a workspace
configured to organize logically market and product data.”
The Examiner finds that this limitation lacks written description
support under § 112. Final Act. 3. The Specification discloses that
“workspaces . . . are work areas within which a user may logically organize
the markets and products that they want to work with.” Spec. 30:9–10
(emphasis added); see also id. at 14:1–2, 31:29–30 (similar). The Examiner
relies on these disclosures in finding that “[t]he workspaces do not perform
the task of organizing logically” but rather “the disclosure describes a
system where workspaces may be provided so that users may logically
organize.” Ans. 7.
However, the Specification also discloses that “the credit trading
arrangement includes a workspace to organize logically market and product
data,” without mentioning the user. Spec. 6:33–7:1. Moreover, we note that
the claims do not limit who or what does the configuring of the workspace,
such as a workspace configured automatically versus configured by a user.
Accordingly, we do not sustain the Examiner’s rejection of claims 1,
38, and 68 under § 112.
DECISION
For the reasons above, we reverse the Examiner’s decision rejecting
claims 1, 6–31, 33, 34, 36–41, 46–58, and 60–68.
REVERSED