Amaitis, Lee et al.

Patent Trials and Appeals Board

Nov 16, 2020

12687980 - (D) (P.T.A.B. Nov. 16, 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.
12/687,980 01/15/2010 Lee Amaitis 09-2326 2631
63710 7590 11/16/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
VAN BRAMER, JOHN W
ART UNIT PAPER NUMBER
3621
NOTIFICATION DATE DELIVERY MODE
11/16/2020 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
mcatarino@cgolaw.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEE AMAITIS and ANDREW GARROOD
____________

Appeal 2019-003866
Application 12/687,980
Technology Center 3600
____________

Before ANTON W. FETTING, PHILIP J. HOFFMANN, and
KENNETH G. SCHOPFER, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE1
Lee Amaitis and Andrew Garrood (Appellant2) seeks review under
35 U.S.C. § 134 of a final rejection of claims 1–27, the only claims pending

1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal
Br.,” filed October 1, 2018) and Reply Brief (“Reply Br.,” filed April 22,
2019), and the Examiner’s Answer (“Ans.,” mailed February 25, 2019), and
Final Office Action (“Final Act.,” mailed April 23, 2018).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as CFPH,
L.P. (Appeal Br. 3).
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in the application on appeal. We have jurisdiction over the appeal pursuant
to 35 U.S.C. § 6(b).
The Appellant invented a way of playing a game. Spec. 19 (Section
XIV, first paragraph).
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. An apparatus comprising:
a processor;
and
a non-transitory machine-readable medium having stored
thereon a set of instructions, which when executed by the
processor, cause the apparatus to:
[1] identify a wager
that may be placed at a first wagering venue;
[2] receive a plurality of respective indications,
in which each respective indication indicates a respective
odds for the wager at a respective one of a plurality of
second wagering venues;
[3] for each of the second wagering venues, determine a
respective effect
on a market in which the first wagering venue competes;
[4] determine a consensus odds
based on the respective odds for the wager at each of the
second wagering venues
such that each of the respective odds has an impact on the
consensus odds that is proportional to the respective

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effect of the respective one of the second wagering
venues on the market;
and
[5] transmit an indication of the consensus odds
to the first wagering venue.
The Examiner relies upon the following prior art:
Name Reference Date
Cannella US 2004/0229675 A1 Nov. 18, 2004
Asher US 2005/0003888 A1 Jan. 6, 2005
Claims 1–27 stand rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.
Claims 1–27 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Asher and Cannella.
ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of obviousness turn primarily on whether the prior art
describes the claim limitations.
FACTS PERTINENT TO THE ISSUES
The following enumerated Findings of Fact (FF) are believed to be
supported by a preponderance of the evidence.
Facts Related to the Prior Art
Asher
01. Asher is directed to betting on events and, more particularly, to
generating customized odds bets for an event. Asher, para. 2.
02. Asher describes identifying a field of participants for an event,
each participant associated with particular odds to finish in a
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particular position in the event. Asher further describes
identifying customized odds for a bet, and identifying a lead
participant from the field of participants, selecting one or more
additional participants from the field of participants such that the
odds associated with the lead participant combined with the odds
associated with the one or more selected additional participants at
least approximates the customized odds for the bet, and
establishing the bet on a group of participants. Asher, para. 5.
Cannella
03. Cannella is directed to betting methods, and more particularly, to
para-mutual betting methods based on the outcomes of multiple
events. Cannella, para. 2.
04. Cannella describes wagering on a plurality of outcomes where the
outcomes are based on a series of events where each event
includes a result having a number of items in a finishing order.
This includes selecting picks to predict the finishing order for at
least one of a series of events, comparing the picks to each item in
each event to determine an accuracy of the picks, and determining
a prize based upon a number of correct picks. Cannella, para. 7–8.
ANALYSIS
Claims 1–27 rejected under 35 U.S.C. § 101 as directed to a judicial
exception without significantly more
All of the claims are nominal apparatus claims. The only structure
recited in each independent claim, however, is the combination of a
conventional generic processor with software on media. The remainder,
which is the substance, of each independent claim recites process steps
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performed as per the software instructions. All dependent claims only recite
further process steps and no further structure. Accordingly, all claims are
method claims in substance, and we refer to them as such below.
STEP 13
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court
set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of those
patent-ineligible concepts. If so, we then ask, “[w]hat else is
there in the claims before us? To answer that question, . . .
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. [The Court] 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.”
Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66 (2012)). To perform this test, we must first determine what the
claims are directed to. This begins by determining whether the claims recite

3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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one of the judicial exceptions (a law of nature, a natural phenomenon, or an
abstract idea). Then, if the claims recite a judicial exception, we must
determine whether the claims at issue are directed to the recited judicial
exception, or whether the recited judicial exception is integrated into a
practical application of that exception, i.e., that the claims “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.” Revised Guidance, 84 Fed. Reg. at
54. If the claims are directed to a judicial exception, then finally we must
determine whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 1 recites identifying wager data, receiving indication data, determining
some effect and odds data, and transmitting odds data. Identifying data is
receiving and analyzing data. Determining effect and odds are mathematical
data analysis. Thus, claim 1 recites receiving, analyzing, and transmitting
data. None of the limitations recites technological implementation details
for any of these steps, but instead recite only results desired by any and all
possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent ineligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
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include (1) mathematical concepts,4 (2) certain methods of organizing
human activity,5 and (3) mental processes6. Among those certain methods
of organizing human activity listed in the Revised Guidance are managing
personal behavior or relationships or interactions between people. Like
those concepts, claim 1 recites the concept of managing game play odds
among participants. Specifically, claim 1 recites operations that would
ordinarily take place in advising one to base one party’s game playing odds
on other parties’ odds. The advice to base one party’s game playing odds on
other parties’ odds involves sending such other odds to the first party’s
location, which is a social game play act, and determining odds, which is an
act ordinarily performed in the stream of social betting play. For example,
claim 1 recites “transmit[ting] an indication of the consensus odds to the first
wagering venue,” which is an activity that would take place whenever one is
computing odds for social betting. Similarly, claim 1 recites “determine a
consensus odds,” which is also characteristic of social betting play.
The Examiner determines the claims to be directed to managing risk
in a wagering system. Final Act. 2. The preamble to claim 1 does not recite

4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC,
898 F.3d 1161, 1163 (Fed. Cir. 2018).
5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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what it is to achieve, but the steps in claim 1 result in managing game play
odds among participants by basing one party’s game playing odds on other
parties’ odds absent any technological mechanism other than a conventional
computer for doing so.
As to the specific limitations, limitation 2 recites receiving data.
Limitations 1 and 3–5 recite generic and conventional receiving, analyzing,
and transmitting of game play data, which advise one to apply generic
functions to get to these results. The limitations thus recite advice for basing
one party’s game playing odds on other parties’ odds. To advocate basing
one party’s game playing odds on other parties’ odds is conceptual advice
for results desired and not technological operations.
The Specification, at page 19, Section XIV, describes the invention as
relating to playing a game. Thus, all this intrinsic evidence shows that claim
1 recites managing game play odds among participants. This is consistent
with the Examiner’s determination.
This in turn is an example of managing personal behavior or
relationships or interactions between people as a certain method of
organizing human activity because managing game play is a way of
managing personal game playing behavior. The concept of managing game
play odds among participants by basing one party’s game playing odds on
other parties’ odds is one idea for managing the coordination of participants.
The steps recited in claim 1 are part of how this might conceptually be
premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. In re Smith, 815 F.3d 816 (Fed.
Cir. 2016) (rules for conducting wagering game).
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Alternately, this is an example of concepts performed in the human
mind as mental processes because the steps of receiving, analyzing, and
transmitting data mimic human thought processes of observation, evaluation,
judgment, and opinion, perhaps with paper and pencil, where the data
interpretation is perceptible only in the human mind. See In re TLI
Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016);
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir.
2016). Claim 1, unlike the claims found non-abstract in prior cases, uses
generic computer technology to perform data reception, analysis, and
transmission and does not recite an improvement to a particular computer
technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837
F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because
they “focused on a specific asserted improvement in computer animation”).
As such, claim 1 recites receiving, analyzing, and transmitting data, and not
a technological implementation or application of that idea.
From this we conclude that at least to this degree, claim 1 recites
managing game play odds among participants by basing one party’s game
playing odds on other parties’ odds, which is managing personal behavior or
relationships or interactions between people, one of certain methods of
organizing human activity identified in the Revised Guidance, and, thus, an
abstract idea.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
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some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.7
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At some
level, “all inventions ... embody, use, reflect, rest upon, or apply
laws of nature, natural phenomena, or abstract ideas.” Thus, an
invention is not rendered ineligible for patent simply because it
involves an abstract concept. “[A]pplication[s]” of such
concepts “ ‘to a new and useful end,’ ” we have said, remain
eligible for patent protection. Accordingly, in applying the § 101
exception, we must distinguish between patents that claim the “
‘buildin[g] block[s]’ ” of human ingenuity and those that
integrate the building blocks into something more.
Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Step 2 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Step 5 is
insignificant post solution activity, such as storing, transmitting, or
displaying the results. Steps 1, 3, and 4 recite generic computer processing
expressed in terms of results desired by any and all possible means and so
present no more than conceptual advice. All purported inventive aspects
reside in how the data is interpreted and the results desired, and not in how
the process physically enforces such a data interpretation or in how the
processing technologically achieves those results.
Viewed as a whole, Appellant’s claim 1 simply recites the concept of
managing game play odds among participants by basing one party’s game

7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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playing odds on other parties’ odds as performed by a generic computer.
This is no more than conceptual advice on the parameters for this concept
and the generic computer processes necessary to process those parameters,
and do not recite any particular implementation.
Claim 1 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The Specification only spells out different
generic equipment8 and parameters that might be applied using this concept
and the particular steps such conventional processing would entail based on
the concept of managing game play odds among participants by basing one
party’s game playing odds on other parties’ odds under different scenarios.
It does not describe any particular improvement in the manner a computer
functions. Instead, claim 1 at issue amounts to nothing significantly more
than an instruction to apply managing game play odds among participants by
basing one party’s game playing odds on other parties’ odds using some
unspecified, generic computer. Under our precedents, that is not enough to
transform an abstract idea into a patent-eligible invention. See Alice, 573
U.S. at 225–26.
None of the limitations reflects an improvement in the functioning of
a computer, or an improvement to other technology or technical field,
applies or uses a judicial exception to effect a particular treatment or
prophylaxis for a disease or medical condition, implements a judicial

8 The Specification describes microprocessors, central processing units
(CPUs), computing devices, microcontrollers, digital signal processors,
or like devices or any combination thereof, regardless of the architecture.
Specification 10:V. Computing, second paragraph.
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exception with, or uses a judicial exception in conjunction with, a particular
machine or manufacture that is integral to the claim, effects a transformation
or reduction of a particular article to a different state or thing, or 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.
We conclude that claim 1 is directed to achieving the result of
managing game play odds among participants by advising one to base one
party’s game playing odds on other parties’ odds, as distinguished from a
technological improvement for achieving or applying that result. This
amounts to managing personal behavior or relationships or interactions
between people, which fall within certain methods of organizing human
activity that constitute abstract ideas. The claim does not integrate the
judicial exception into a practical application.
STEP 2B
The next issue is whether claim 1 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
the mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
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amounts to a mere instruction to “implement[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of “additional feature[e]” that provides any
“practical assurance that the process is more than a drafting effort
designed to monopolize the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
computer for receiving, analyzing, and transmitting data amounts to
electronic data query and retrieval—one of the most basic functions of a
computer. All of these computer functions are generic, routine, conventional
computer activities that are performed only for their conventional uses. See
Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). None of
these activities is used in some unconventional manner nor does any produce
some unexpected result. Appellant does not contend it invented any of these
activities. In short, each step does no more than require a generic computer
to perform generic computer functions. As to the data operated upon, “even
if a process of collecting and analyzing information is ‘limited to particular
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content’ or a particular ‘source,’ that limitation does not make the collection
and analysis other than abstract.” SAP America, Inc. v. InvestPic LLC, 898
F.3d 1161, 1168 (Fed. Cir. 2018).
Considered as an ordered combination, the computer components of
Appellant’s claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
transmission is equally generic and conventional. See Ultramercial, Inc. v.
Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014) (sequence of receiving,
selecting, offering for exchange, display, allowing access, and receiving
payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath &
Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data
retrieval, analysis, modification, generation, display, and transmission),
Two-Way Media Ltd. v. Comcast Cable Communications, LLC, 874 F.3d
1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling,
and monitoring). The ordering of the steps is therefore ordinary and
conventional.
We conclude that claim 1 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 1 is representative. The other independent claims are
substantially similar at least as regards to this analysis. The remaining
claims merely describe process parameters. We conclude that the claims at
issue are directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
As to the recitation of these claims as structural claims, they
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are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic computer
components configured to implement the same idea. This Court
has long “warn[ed] ... against” interpreting § 101“in ways that
make patent eligibility ‘depend simply on the draftsman’s art.’”
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by managing personal
behavior or relationships or interactions between people by managing game
play odds among participants by advising one to base one party’s game
playing odds on other parties’ odds, without significantly more.
APPELLANT’S ARGUMENTS
We are not persuaded by Appellant’s argument that
The rejection cites a series of decisions that are different from
the facts of the instant case: Bilski, Electric Power Group,
Grams, and Perkin-Elmer. The concepts claimed in these
decisions: Hedging (Bilski); collecting information, analyzing it,
and displaying certain results of the collection (Electric Power
Group); and diagnosing an abnormal condition by performing
clinical tests and thinking about the results (Grams); are not
reasonably tied to determining consensus odds among wagering
venues.
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Appeal Br. 8. The analysis, supra, shows how various pertinent cases apply
to the instant claims.
We are not persuaded by Appellant’s argument that “the instant
claims do recite a ‘set of rules...that improve computer-related technology by
allowing the computer to perform a function not previously performable by a
computer.’ An improvement to the operation of the computer per se is not
required.” Appeal Br. 9 (emphasis omitted). As we determine, supra, the
functions performed are those of receiving, analyzing, and transmitting data.
All of these are both conventional and generic. No technological
implementation details are recited. The overall function of managing game
play odds among participants by advising one to base one party’s game
playing odds on other parties’ odds is not a computer function, but a
conceptual idea.
At that level of generality, the claims do no more than describe
a desired function or outcome, without providing any limiting
detail that confines the claim to a particular solution to an
identified problem. The purely functional nature of the claim
confirms that it is directed to an abstract idea, not to a concrete
embodiment of that idea.
Affinity Labs of Texas, LLC v. Amazon.com Inc., 838 F.3d 1266, 1269 (Fed.
Cir. 2016).
Appellant cites Berkheimer for the proposition that evidence of
something being conventional is necessary. Berkheimer v. HP Inc., 881
F.3d 1360 (Fed. Cir. 2018). Appeal Br. 10. Such evidentiary support is
provided under Step 2B, supra.
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Claims 1–27 rejected under 35 U.S.C. § 103(a) as unpatentable over Asher
and Cannella
We are persuaded by Appellant’s argument that neither reference
describes the claim limitations regarding a second venue because neither
reference describes a second venue. Appeal Br, 12,
CONCLUSIONS OF LAW
The rejection of claims 1–27 under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more is proper.
The rejection of claims 1–27 under 35 U.S.C. § 103(a) as unpatentable
over Asher and Cannella is improper.
CONCLUSION
The rejection of claims 1–27 is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–27 101 Eligibility 1–27
1–27 103 Asher, Cannella 1–27
Overall Outcome 1–27

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED