American Simmental Associationv.Leachman Cattle of Colorado, LLC

Patent Trial and Appeal Board

Jun 13, 2016

14152845 (P.T.A.B. Jun. 13, 2016)

Trials@uspto.gov Paper No. 52
571-272-7822 Entered: June 13, 2016

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

AMERICAN SIMMENTAL ASSOCIATION,
Petitioner,

v.

LEACHMAN CATTLE OF COLORADO, LLC,
Patent Owner.
_________

Case PGR2015-00005
Patent 8,725,557 B1
____________

Before PHILLIP J. KAUFFMAN, MICHAEL W. KIM, and
WILLIAM M. FINK, Administrative Patent Judges.

KIM, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 328(a) and 37 C.F.R. § 42.73

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I. INTRODUCTION
A. Background
American Simmental Association (“Petitioner”) filed a Petition (“Pet.”) for
post-grant review of claims 1–20 of U.S. Patent No. 8,725,557 (“the ’557 patent”)
(Ex. 1001) pursuant to 35 U.S.C. §§ 321–329. Paper 1. Leachman Cattle of
Colorado, LLC (“Patent Owner”) filed a Preliminary Response. Paper 8; “Prelim.
Resp.” On June 19, 2015, we instituted a post grant review of claims 1–20 on
certain grounds of unpatentability alleged in the Petition. Paper 16 (“Dec.”). After
institution of trial, Patent Owner filed a Patent Owner Response (Paper 32, “PO
Resp.”) and Petitioner filed a Reply (Paper 36, “Pet. Reply”). Patent Owner also
filed a Motion to Amend (Paper 33, “PO Amend.”) to which Petitioner filed a
Response (Paper 37, “Pet. Resp.”) and Patent Owner filed a Reply (Paper 40, “PO
Reply”). Patent Owner filed a Motion to Exclude (Paper 44, “PO Mot.”), to which
Petitioner filed a Response (Paper 47, “Pet. Mot. Resp.”) and Patent Owner filed a
Reply (Paper 48, “PO Mot. Reply”). An oral hearing was held on March 1, 2016.
Paper 51 (“Tr.”).
The Board has jurisdiction under 35 U.S.C. § 6(c). In this Final Written
Decision, issued pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73, we
determine that Petitioner has shown by a preponderance of the evidence that all
claims for which trial was instituted, i.e., claims 1–20, are unpatentable. Patent
Owner’s Motion to Amend is denied. Patent Owner’s Motion to Exclude is
dismissed as moot.
B. The ’557 Patent
The ’557 patent relates generally to genetic quality and relative market value
of livestock. Ex. 1001, 1:23–25. The ’557 patent further discloses the following:
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More specifically, embodiments of the present invention facilitate an
owner or potential buyer of one or more sale groups of livestock to
evaluate the relative market value of the sale groups based on
predictions derived from genetic merit estimates of the herd.
Ex. 1001, 1:25–29. Ranchers invest significant amounts of money to build quality
herds of livestock with desired genetic merits. Ex. 1001, 1:31–32. Most ranchers,
however, are not able to realize an increased value for their livestock with desired
genetic merits, and instead sell their annual livestock crops on the commodity
market at or near average price for all livestock. Ex. 1001, 1:35–38. Therefore,
according to the ’557 patent, it is very important to determine what the actual value
of the livestock is, and more specifically what premium or discount the livestock
should command based on these desired genetic merits. Ex. 1001, 1:47–49.
C. Related Matters
Petitioner and Patent Owner identify the following reissue application
involving the ’557 patent: 14/516,372 (“the ’372 application”). Pet. 2; Paper 6, 2.
Petitioner and Patent Owner identify additionally the following related
patent and patent application: U.S. Patent No. 8,660,888 (“the ’888 patent”); U.S.
Patent Application No. 14/516,353 (re-issue of the ’888 patent) (“the ’353
application”). Pet. 1–2; Paper 6, 2. Patent Owner identifies also the following
related patent applications: PCT/US2014/019775; U.S. Patent Application No.
14/226,236; and U.S. Patent Application No. 14/286,857. Paper 6, 2.
Petitioner and Patent Owner additionally assert that there are currently no
pending district court proceedings concerning the ’557 patent. Pet. 1; Paper 6, 3.
Petitioner also has filed a Petition for post-grant review of the ’888 patent:
PGR2015-00003.
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D. Illustrative Claim
Independent claim 8 is reproduced below:
8. A computer-implemented method to determine relative market
value of a sale group, the computer implemented method comprising
the steps of:
generating a genetic merit interface to display at one or more
electronic interfaces, the genetic merit interface allowing an input of a
plurality of genetic merit estimates associated with the sale group;
determining, by one or more processors, relative market value
and one or more rankings of genetic merits of the sale group responsive
to the plurality of genetic merit estimates from the genetic merit
interfaces; and
outputting to one or more electronic interfaces a genetic merit
scorecard for the sale group responsive to determining the relative
market value and one or more rankings of genetic merits of the sale
group, the genetic merit scorecard including the relative market value
and one or more rankings of genetic merits of the sale group.
E. Instituted Grounds of Unpatentability
A trial was instituted as to the unpatentability of claims 1–20 on the
following grounds:
Reference(s) Basis Challenged Claim(s)
(not applicable) § 101 1–20
Wang1 and the Angus system2 § 103 1–20

1 US 2007/0105107 A1, pub. May 10, 2007 (“Wang”; Ex. 1004).
2 Petitioner provides the following evidence in support of “the Angus system”:
Declaration of Ms. Ginette Kurtz (“Kurtz Decl.”; Ex. 1011); Declaration of Dr.
Dan Moser (“Moser Decl.”; Ex. 1012); Printout from Angus’s website, 2014
(“Angus 1”; Ex. 1013); Printout from AngusSource website, 2010 (“Angus 2”; Ex.
1014).
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Petitioner also cites the Declaration of Dr. Matthew Spangler (Ex. 1015; “the
Spangler Decl.”).
F. Eligibility of Patent for Post-Grant Review
The post-grant review provisions of the Leahy-Smith America Invents Act
(“AIA”)3 apply only to patents subject to its first inventor to file provisions. AIA
§ 6(f)(2)(A). Specifically, the first inventor to file provisions apply to any
application for patent, and to any patent issuing thereon, that contains or contained
at any time a claim to a claimed invention that has an effective filing date on or
after March 16, 2013. AIA § 3(n)(1). Furthermore, “[a] petition for a post-grant
review may only be filed not later than the date that is 9 months after the date of
the grant of the patent or of the issuance of a reissue patent (as the case may be).”
35 U.S.C. § 321(c); see also 37 C.F.R. § 42.202(a).
Petitioner asserts that the ’557 patent is a first-to-file patent, and indicates
that the earliest possible effective date of the ’557 patent is April 13, 2013. Pet. 2–
3. Petitioner asserts further that the instant Petition is being filed within nine
months of the February 25, 2014 issue date of the ’557 patent. Pet. 2–3. Patent
Owner does not dispute these assertions, and we agree that they are accurate.
Accordingly, we conclude that the ‘’888 patent was eligible for post-grant review
at the time the Petition was filed.
II. ANALYSIS
A. Level of Ordinary Skill
Petitioner asserts that a person of ordinary skill in the art of the ’888 patent
would have “at least a Master’s degree in Animal Breeding and Genetics plus at
least 5–7 years of experience in the field, or a PhD in Animal Breeding and

3 Pub L. No. 112-29, 125 Stat. 284 (2011).
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Genetics plus at least 2–4 years of experience in the field.” Pet. 10–12 (citing
Ex.1015 ¶¶ 6–12). Patent Owner contends generally that Petitioner’s asserted level
of ordinary skill is too high, countering with the following:
A person of ordinary skill in the field of the ’557 Patent (the
“POSITA”) would have been someone with a good working
knowledge of the cattle industry (including the feeder calf production
market) and agricultural economics, mathematics, and computer
programming as applied to this industry. (Ex. 2022, ¶ 52; Ex. 2024, ¶
50.) A POSITA would have also had a basic understanding of breeding
and genetics, as applied to the feeder calf production market. (Ex.
2022, ¶ 52; Ex. 2024, ¶ 50.) A POSITA would have gained her
knowledge through a Bachelor of Science degree in animal science,
agricultural business, or a comparable field (including coursework in
beef production), and three to five years of relevant work experience.
(Ex. 2022, ¶ 52; Ex. 2024, ¶ 50.) This would necessarily include
experience in the purchase and sale of feeder calves. (Ex. 2022, ¶ 52;
Ex. 2024, ¶ 50.)
PO Resp. 23–24. Petitioner responds that because evaluation of genetic quality is
involved, a bachelor of science degree is inadequate, and that in requiring
economics and software backgrounds, Patent Owner improperly ignores that the
person of ordinary skill here is the developer, and not the end-user. Pet. Reply 4.
Ultimately, we discern that Petitioner and Patent Owner are not very far
apart. On education, we agree with Petitioner that evaluating genetic quality is
sufficiently complex that it would require, at a minimum, a Master’s Degree in the
field. On work experience, we agree with both parties that several years of
experience in the field is necessary, with the optimum for a Master’s Degree being
five years, and commensurately less for an individual possessing a PhD. We agree
with Patent Owner that some understanding of economics and software is required,
but agree with Petitioner that such understanding need only be a basic one that can
be readily acquired through work experience in the field, with no formal education
in that field being necessary. Finally, we disagree with Patent Owner that formal
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training or experience specific to the feeder calf market needs to be addressed
separately, as, for the reasons set forth below, we are unpersuaded that evaluating
feeder calves as a subgroup differs materially from evaluation of cattle overall, and
that one of ordinary skill in evaluating of genetic quality of cattle generally would
not have been familiar with feeder calves specifically, especially when the
overwhelming goal of cattle production is to sell beef, of which the primary type
sold is feeder calves.
Perhaps more importantly, the significance of the level of ordinary skill in
the art here is the role it plays in an obviousness analysis, and Patent Owner has
not explained in a sufficiently persuasive manner how the disparate definitions
impact dispositively the obviousness analysis. See Graham v. John Deere Co., 383
U.S. 1, 17-18 (1966); Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001)
(“[T]he level of skill in the art is a prism or lens through which a judge, jury, or the
Board views the prior art and the claimed invention.”); Ryko Mfg. Co. v. Nu-Star,
Inc., 950 F.2d 714, 718 (Fed. Cir. 1991) (“The importance of resolving the level of
ordinary skill in the art lies in the necessity of maintaining objectivity in the
obviousness inquiry.”).
Accordingly, unless expressly indicated otherwise, we determine that a
specific finding on the level of skill in the art is not required, because the prior art
itself reflects an appropriate skill level. See Okajima, 261 F.3d at 1355.
B. Claim Construction
In a post-grant review, a claim in an unexpired patent shall be given its
broadest reasonable construction in light of the specification of the patent in which
it appears. 37 C.F.R. § 42.200(b); see also In re Cuozzo Speed Techs., LLC, 793
F.3d 1268, 1277–78 (Fed. Cir. 2015) (“We conclude that Congress implicitly
approved the broadest reasonable interpretation standard in enacting the AIA.”),
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cert. granted sub nom. Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct. 890 (mem.)
(2016). Under the broadest reasonable construction standard, claim terms are
given their ordinary and customary meaning, as would be understood by one of
ordinary skill in the art in the context of the entire disclosure. In re Translogic
Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a
claim term must be set forth in the specification with reasonable clarity,
deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
We must be careful not to read a particular embodiment appearing in the written
description into the claim if the claim language is broader than the embodiment. In
re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). We construe the terms below
in accordance with these principles.
1. “relative market value”
Each of independent claims 1, 8, and 14 recites “relative market value.” For
example, independent claim 8 recites “determining, by one or more processors,
relative market value and one or more rankings of genetic merits of the sale group
responsive to the plurality of genetic merit estimates from the genetic merit
interfaces.” Petitioner proffers that “relative market value” should be construed as
follows: “the value of the sale group as compared to the value of a baseline group.”
Pet. 13–14 (citing Ex. 1001, 19:27–35; Ex. 1015 ¶ 28; emphasis omitted). The
’557 patent discloses the following concerning “relative market value”:
The relative market value may be expressed in various ways. In
one embodiment, the relative market value is a difference in market
value per head of a sale group compared to the market value of a sale
group that represents the average progeny of all registered bulls in the
country or market region. In another embodiment, the relative market
value is a difference in market value per centum weight of the sale
group compared to the market value per centum of a sale group that
represents the average progeny of all registered bulls in the country or
market region.
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Ex. 1001, 19: 26–35. In the Decision on Institution, we construed “relative market
value,” in the context of the aforementioned surrounding claim language, as “the
market value of a sale group as compared to the market value of any other market
group.” Dec. 7 (citing Ex. 1001, 19:26–35)4. Petitioner appears to agree with this
construction. Pet. Reply 6–7 (citing Ex. 1001, 20:38–43; 22:32–34; 22:61–23:18;
24:3–5; 25:56–26:10).
Through their assertions concerning the prior art, Patent Owner may be
implicitly asserting that “market value of any other market group” only makes
sense if it is the “national market average value.” PO Resp. 49–50. We disagree.
The claim limitation itself reads “relative market value,” and does not include
either the “national” or “average,” and the aforementioned portion of the ’557
patent discloses expressly that “relative market value may be expressed in various
ways,” providing a non-limiting example of at least “the market value of a sale
group that represents the average progeny of all registered bulls in the country or
market region.”
Also through their assertions concerning the prior art, Patent Owner appears
to be implicitly asserting that by including the phrase “any other market group,”
any values used to calculate the “relative market value” must be of a format that is
standardized to allow comparisons across all other market groups, for example,
across different breeds. PO Resp. 46–50. We disagree. Neither the express claim
language nor the aforementioned portion of the ’888 patent requires that any values
used to calculate the recited “relative market value,” or even the “relative market
value” itself, be comparable across all market groups. Certainly calculating a

4 Divorced from surrounding claim language, we construe “relative market value”
as “the market value of something as compared to the market value of any other
market group.”
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value of one breed that is of a format that allows direct comparisons to a value of
any other breed would appear to be more useful. The claim language itself,
however, does not require such a result. For example, even if any values are only
applicable to one specific breed, so long as there are two different market groups of
that specific breed that are compared using that format, the value resulting from
that comparison would still meet the recited “relative market value.” To eliminate
any such confusion, we modify the aforementioned construction of “relative
market value,” in the context of the aforementioned surrounding claim language, as
follows: “the market value of a sale group as compared to the market value of at
least one other market group.”
2. “sale group”
Each of independent claims 1, 8, and 14 recites “sale group.” For example,
independent claim 8 recites “generating a genetic merit interface to display at one
or more electronic interfaces, the genetic merit interface allowing an input of a
plurality of genetic merit estimates associated with the sale group.” Petitioner
proffers that “sale group” should be construed as follows: “one or more animals.”
Pet. 14 (citing Ex. 1001, 11:5–6, 34–35). In the Decision on Institution, we
construed “sale group” as “one or more animals.” Dec. 7–8 (citing Ex. 1001,
11:5–6, 11:34–35; Ex. 2001). Patent Owner makes several assertions concerning
this construction (PO Resp. 23–26), to which Petitioner replies (Pet. Reply 5–6).
Specifically, Patent Owner implies that “sale group” should be construed as “cattle
to be sold.” PO Resp. 40–41. We disagree that “sale group” should be construed
as requiring cattle. None of the independent claims restrict “sale group” to
“cattle,” and column 11, lines 5–6 of the ’557 patent sets forth an express
definition of “sale group,” and that definition does not include anything about
“cattle.”
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Concerning “to be sold,” “sale group” does include the word “sale,” and,
thus, we are persuaded that some aspect of “sale” should be included in the express
construction of “sale group.” We determine also that the appropriate articulation
of “sale” for “sale group,” in the context of surrounding claim language, is “for
which a relative market value is determined.” The ’557 patent confirms this
understanding. Ex. 1001, 11:5-6 (“[a]s used herein, a sale group is an animal or
plurality of animals for which a relative market value is determined”) (emphasis
added). Accordingly, to give effect to the word “sale” consistent with the
specification, we modify our construction as follows: “one or more animals for
which a relative market value is determined.”
After considering all evidence and assertions concerning this claim
construction, we construe “sale group” as “one or more animals for which a
relative market value is determined.”
3. “genetic merit scorecard”
Each of independent claims 1, 8, and 14 recite “genetic merit scorecard.”
Petitioner asserts that “genetic merit scorecard” should be construed as “visual
display of genetic merit information.” Pet. 17–18 (citing Ex. 1001). Patent Owner
does not dispute this construction. PO Resp. 23–26. After considering all
evidence and assertions concerning this claim construction, we agree with
Petitioner that “genetic merit scorecard” should be construed as “visual display of
genetic merit information.”
C. Claims 1–20 as Failing to Recite Statutory Subject Matter
Petitioner contends that claims 1–20 fail to recite statutory subject matter
under 35 U.S.C. § 101. Pet. 28–38 (citing Exs. 1001, 1006, 1007, 1008, 1015).
Patent Owner disagrees. PO Resp. 58–69 (citing Exs. 1001, 2002, 2003, 2018,
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2022, 2034). Petitioner replies. Pet. Reply 7–12 (citing Ex. 1001). Claims 1, 8,
and 14 are independent.
1. Relevant Law
Under 35 U.S.C. § 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. The Supreme Court, however, has long interpreted § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not
patentable. See, e.g., Alice Corp. Pty Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354
(2014).
In determining whether a claim falls within the excluded category of abstract
ideas, we are guided in our analysis by the Supreme Court’s two-step framework,
described in Alice, 134 S. Ct. at 2355, and Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 132 S. Ct. 1289, 1296–97 (2012). In accordance with that
framework, we first determine whether the claim is “directed to” a patent-ineligible
abstract idea. See Alice, 134 S. Ct. at 2356 (“On their face, the claims before us
are drawn to the concept of intermediated settlement, i.e., the use of a third party to
mitigate settlement risk”); Bilski v. Kappos, 130 S. Ct. 3218, 3231 (2009) (“Claims
1 and 4 in petitioners’ application explain the basic concept of hedging, or
protecting against risk . . . .”); Diamond v. Diehr, 450 U.S. 175, 184 (1981)
(“Analyzing respondents’ claims according to the above statements from our cases,
we think that a physical and chemical process for molding precision synthetic
rubber products falls within the § 101 categories of possibly patentable subject
matter.”); Parker v. Flook, 437 U.S. 584, 594–95 (1978) (“Respondent’s
application simply provides a new and presumably better method for calculating
alarm limit values.”); Gottschalk v. Benson, 409 U.S. 63, 64 (1972) (“They
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claimed a method for converting binary-coded decimal (BCD) numerals into pure
binary numerals.”).
The patent-ineligible side of the spectrum includes fundamental economic
practices, Alice, 134 S. Ct. at 2357, Bilski, 130 S. Ct. at 3231; mathematical
formulas, Flook, 437 U.S. at 594–95; and basic tools of scientific and
technological work, Benson, 409 U.S. at 69. On the patent-eligible side of the
spectrum are physical and chemical processes, such as curing rubber, Diamond,
450 U.S. at 184, “tanning, dyeing, making waterproof cloth, vulcanizing India
rubber, smelting ores,” and a process for manufacturing flour, Gottschalk, 409 U.S.
at 69 (internal citations omitted).
If the claim is “directed to” a patent-ineligible abstract idea, we then
consider the elements of the claim—both individually and as an ordered
combination—to assess whether the additional elements transform the nature of the
claim into a patent-eligible application of the abstract idea. Alice, 134 S. Ct. at
2355. This is a search for an “inventive concept”—an element or combination of
elements sufficient to ensure that the claim amounts to “significantly more” than
the abstract idea itself. Id.
2. Whether Claims 1–20 Recite an Abstract Idea
Petitioner asserts that independent claims 1, 8, and 14 are directed to the
fundamental concept of “determining an animal’s relative economic value based
on its genetic and physical traits,” and that such a fundamental concept is a patent
ineligible abstract idea. Pet. 30–33. Specifically, Petitioner asserts the following:
Peeling back the flowery language of claims 1, 8, and 14, these
claims essentially call for: (1) accepting inputted information regarding
animal characteristics (or “genetic merit estimates”), (2) running a set
of predetermined mathematical formulas using the inputted animal
characteristics information to determine a monetary value of the
animal, and (3) outputting the result of such formulas, including a
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ranking of certain of the animal’s characteristics. These steps capture
the fundamental principle of determining an animal’s relative economic
value based on its genetic and physical traits. (Spangler Decl., ¶ 51.)
For centuries, cattle producers have judged the value of animals
based on their physical traits and parentage. (Id. at ¶ 52.) Many
decades ago, cattle producers began measuring the traits of animals and
recording the collected data. (Id.) By creating algorithms for
determining the relative value of animals based on the various
measured traits, experts in this area long ago developed better valuation
and breeding practices. (Id.) This concept is so fundamental and
prevalent in today’s market as to have become ubiquitous in the cattle
industry. (Id.)
Pet. 30–31. Petitioner asserts further that none of dependent claims 2–7, 9–13, and
15–20 set forth any limitations that require deviation from the aforementioned
fundamental concept.
Patent Owner counters with the following:
The claimed invention is directed to analyzing and measuring
the market potential (including market value and ranking) of a sale
group of feeder calves (actual calves to be sold), based on
information obtained from disparate sources, and transforming
these results into dynamically-generated scorecards available on
demand by users interested in purchasing the sale group. (E.g., Ex.
1001, Abstract, 2:6-44.) Importantly, by dynamically generating these
scorecards, the relative market value can be personalized to the user
based on each individual’s unique circumstances. (Ex. 2022, ¶ 61.)
The Board stated in its Institution Decision that, based on the record
available to it at the time, the ‘557 Patent was directed to the mere
abstract idea of “determining an animal’s relative economic value
based on its genetic and physical traits.” (Paper 16 at 13.) The claimed
invention does not preempt anyone from applying this alleged abstract
idea. (Ex. 2022, ¶ 61.) Rather, it provides cutting edge technology and
a resulting product that has never been available before and is based on
a very new approach – a system that provides, through the aggregation
of myriad disparate data, a scorecard with an accurate estimation of
monetary worth, of actual feeder calves to be sold. (Ex. 2022, ¶ 61.)
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PO Resp. 59 (emphasis added). In essence, Patent Owner asserts that Petitioner’s
proffered fundamental concept is overly generalized, and asks us to modify
Petitioner proffered fundamental concept of “determining an animal’s relative
economic value based on its genetic and physical traits” to include additional
words including “sale group of feeder calves,” “disparate sources,” “transforming,”
“dynamically,” and “on-demand.” See also PO Resp. 63–64. We disagree that
such a modification is appropriate, for the reasons set forth below. For purposes of
clarity, we will evaluate both Petitioner and Patent Owner’s positions only with
respect to independent claim 1, however, a similar analysis is applicable to each of
claims 1–20.
Fundamentally, a proper evaluation of Petitioner’s position vis-à-vis Patent
Owner’s position should begin with the claims themselves. After consideration of
the express language of independent claim 1, we agree with Petitioner that the
claims appear to be directed largely to applications of mathematical formulas and
algorithms in the field of animal valuation, which would support Petitioner’s
proffered fundamental concept argument.
By contrast, independent claim 1 does not recite any of the above words
sought to be added by Patent Owner. For example, concerning “dynamically” and
“on-demand,” while Patent Owner does identify some claim limitations arguably
supporting their positions that the articulated fundamental concept should include
“dynamically,” and “on-demand,” we are unpersuaded that any of “sale group,”
“genetic merit interface,” determining “relative market value,” or outputting a
“genetic merit scorecard” are related to either “dynamic” or “on-demand” in a
manner sufficient to require alteration of the aforementioned fundamental concept.
For example, being “dynamic” in this context implies that the output responds
automatically to changes in underlying data. Presumably the underlying data
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would change based on user input in the “genetic merit interface,” however,
independent claim 1 does not provide any indication that any input from the
“genetic merit interface” is processed automatically. In another example, being
“on-demand” implies that information is displayed at the request of a user.
Presumably the outputting of a “genetic merit scorecard” limitation supports this
position, however, we are unable to identify anything in the outputting limitation
that indicates displaying any information at the request of a user.
We determine similarly that none of the other terms to be added by Patent
Owner are rooted sufficiently in the express claim language, and in any case, are
peripheral to the above-identified fundamental concept, in that while they may
represent variations of the fundamental concept, we are unpersuaded that they alter
materially the fundamental concept itself. For example, being “dynamic,” while
perhaps placing some temporal aspects on “determining an animal’s relative
economic value based on its genetic and physical traits,” does not alter the fact that
independent claim 1 is fundamentally directed to “determining an animal’s relative
economic value based on its genetic and physical traits.” A similar analysis is
applicable to “sale group of feeder calves,” “disparate sources,” and
“transforming.”
The Specification further supports Petitioner’s argument. The “Field of the
Invention” section set forth in the ’557 patent reads as follows:
Embodiments of the present invention relate generally to the
field of genetic quality and relative market value of livestock. More
specifically, embodiments of the present invention facilitate an owner
or potential buyer of one or more sale groups of livestock to evaluate
the relative market value of the sale groups based on predictions derived
from genetic merit estimates of the herd.
Ex. 1001, 1:23–29. The “Description of Related Art” section that follows delves
heavily into problems associated with determining what the actual value of the
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livestock is, and more specifically what premium or discount the livestock should
command based on these desired genetic merits. Ex. 1001, 1:47–49. The first
three sentences of the “Summary” section then read as follows:
The Applicants recognize the importance of determining relative
market value of a sale group or a group of animals offered for sale from
a livestock operation. Various embodiments of methods and apparatus
for determining relative market value of a sale group are provided
herein. Exemplary embodiments of the present invention include an
online genetic merit scorecard system.
Ex. 1001, 2:6–12. Based on the above cited portions of the ’557 patent, we
determine that the Specification supports heavily Petitioner’s proposed
fundamental concept. The unambiguous disclosure in the Specification as to the
nature of the invention indicates to us that Petitioner has not over-generalized here.
Given the fundamental concept of “determining an animal’s relative
economic value based on its genetic and physical traits,” we are persuaded by
Petitioner’s assertion that this concept is a “‘fundamental economic practice . . .
long prevalent in our system of commerce,’” or “‘a fundamentally necessary and
decades old principle,’” or a “‘building block of human ingenuity.’” Pet. 31–32.
Our determination is supported by our finding that the “Description of Related
Art” is replete with examples of prior attempts at “determining an animal’s relative
economic value based on its genetic and physical traits.” See e.g., Ex. 1001, 1:31–
2:2. Our determination is supported further by Dr. Spangler’s representation that,
among other factors, “valuing an animal based on its physical traits and lineage has
been routine for centuries – likely millennia.” Ex. 1015 ¶ 52. Patent Owner
challenges the fact that the aforementioned fundamental concept is any of
“‘fundamental economic practice . . . long prevalent in our system of commerce,’”
an “‘a fundamentally necessary and decades old principle,’” or a “‘building block
of human ingenuity’” (PO Resp. 60–64), however, Patent Owner’s assertions are
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misplaced as they are directed to Patent Owner’s proffered narrower fundamental
concept, a proffer we do not adopt for the reasons set forth above.
Given all this, we are persuaded that the aforementioned fundamental
concept is closely akin to the patent-ineligible abstract ideas of “hedging” found in
Bilski and “intermediated settlement” found in Alice. Thus, we determine that
claims 1–20 are directed to a patent-ineligible abstract idea.
3. Whether Claims 1–20 Recite “Significantly More”
Given that the claims are directed to an abstract idea, Petitioner asserts that
the claims fail to recite an inventive concept that recites “significantly more” so as
to transform the otherwise patent-ineligible abstract idea into patentable subject
matter. Most significantly, Petitioner asserts that the claims merely recite generic
computer hardware that is used in a conventional manner, which has been found in
Alice and other decisions by our reviewing courts as insufficient to transform an
otherwise patent-ineligible abstract idea into patentable subject matter. Pet. 34–38.
Patent Owner disagrees for several reasons. PO Resp. 64–69. We agree with
Petitioner.
Specifically, we agree with, and are persuaded by, Petitioner’s assertions
that all computer recitations in the challenged claims are recitations to generic
computer hardware used in a conventional manner, which are insufficient to impart
patentability under Alice. For example, independent claim 1 recites the following
computer hardware: “computer-implemented method”; “one or more processors”;
and “electronic interfaces.” We are unable to ascertain how the claims use these
and other items of computer hardware in a manner other than their conventional
generic use. For example, the Specification recites the following concerning the
“processor”: “[t]he processor can be any commercially available terminal
processor, or plurality of terminal processors, adapted for use in or with the
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computer 41 or system 401.” Ex. 1001, 28:35–37 (italics added). The balance of
the paragraph then continues on to provide a seemingly exhaustive list of
processors that are suitable for use in the invention, providing a strong indication
that any conventional generic processor is acceptable for use in the claimed
invention. The Specification then continues on in a similar fashion concerning
“computer” and “non-transitory memory,” and discloses the following concerning
the Internet: “the graphical user interface 51 can be an Internet website, accessible
by a communications network . . . and one or more graphical user interface input
components as known and understood by those skilled in the art.” Ex. 1001,
30:61–67 (emphasis added). The story is no different for “database” (Ex. 1001,
35:29–39) and “genetic merit interface” (Ex. 1001, 29:57–30:1). We are
unpersuaded that there is any indication, either in the claims or the Specification,
that any of the recited computer hardware is used in a manner other than their
conventional generic use, and, thus, they are insufficient to impart patentability
under Alice.
Patent Owner asserts that the claims are confined to not just valuations of
animals generally, but feeder calves. Patent Owner’s assertions are misplaced, for
as set forth above in our construction of “sale group,” the claims are not restricted
to “feeder calves.” Indeed, we note that none of the claims recite either of “feeder”
or “calves.”
Patent Owner asserts further that the claims impose the following
“significantly more” requirements:
(a) the relative market value of the sale group, as a whole, be
determined (unlike Selection Indices which, at best, evaluate individual
animals); (b) the relative market value is tailored to each interested
buyer based on their own unique circumstances (i.e., the relative market
value may change depending on the user); and (c) the sale group must
be ranked, such that the user can determine how that sale group may
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compare to other sale groups (e.g., in terms of certain genetic
attributes).
PO Resp. 66. However, we are unpersuaded that (a) valuing a group of animals is
“significantly more” than valuing a single animal, (b) tailoring a price to a user is
“significantly more,” and (c) comparison shopping is “significantly more,” whether
taken in succession or as a whole. Indeed, these requirements appear to be routine
parts of commerce involving the fundamental concept of “determining an animal’s
relative economic value based on its genetic and physical traits.”
Patent Owner asserts additionally that the claimed invention does not merely
recite the alleged abstract idea and say “apply it” on computer components,
because the recited computer components are an integral part of rooting the
invention in computer technology. Specifically, Patent Owner asserts that the
claimed invention involves novel technical software that “transforms genetic and
performance information associated with the sale group into a dynamically-
generated scorecard available to users on-demand.” PO Resp. 67. We disagree, as
the recitation of software in the claim, if any at all, is at a highly abstract level, in
that the claims recite no more than taking in and outputting data, with no detail as
to how that data is manipulated between input and output.5 Absent such detail, we
are unpersuaded that the claims are reciting any more than “applying to software”
the fundamental concept of “determining an animal’s relative economic value
based on its genetic and physical traits,” which is not “significantly more.” As for
“dynamically-generated scorecard available to users on-demand,” our analysis of
the same in the abstract idea prong of Alice is equally applicable here, namely, that

5 “MR. COHN: Your Honor, the little calculator that’s in Windows is a dynamic
calculator. It’s been there for 25, 30 years. You pull it up. You type in five times
two and you hit equals and it spits the answer back to you on demand right there.”
Tr. 85:24–86:2.
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we are unpersuaded that “dynamic” and “on-demand” are sufficiently related to the
claims.
Patent Owner cites DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1257 (Fed. Cir. 2014) in support of their position, but it is precisely because of the
instructive nature of the problem-solution approach in that case that we arrive at
our conclusion here. Specifically, DDR Holdings held that the “problem of
retaining website visitors” involves a “claimed solution [that] is necessarily rooted
in computer technology in order to overcome a problem specifically arising in the
realm of computer networks.” DDR Holdings, LLC, 773 F.3d at 1257. Such is not
the case here, where the problem, as clearly articulated above in the
aforementioned portions of the Specification, is “determining an animal’s relative
economic value based on its genetic and physical traits.” We are unpersuaded that
this problem, or its solution, involves or requires anything computer-related.
4. Conclusion
For the foregoing reasons, we conclude that Petitioner has shown, by a
preponderance of the evidence, that claims 1–20 fail to recite statutory subject
matter, and are, thus, unpatentable, under 35 U.S.C. § 101.
D. Claims 1–20 as Obvious over Wang and the Angus System
Petitioner contends that claims 1–20 are obvious over Wang and the Angus
system. Pet. 54–78 (citing Exs. 1004, 1011–1014, 1015). Patent Owner disagrees.
PO Resp. 27–58 (citing Exs. 1001, 1004, 1011–1014, 1016, 2014, 2022, 2024,
2033, 2034). Petitioner replies. Pet. Reply 12–23 (citing Exs. 1001, 1004, 1013,
1014, 1016–1022, 2005, 2036, 2037). Claims 1, 8, and 14 are independent.
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1. Whether the Angus System is Prior Art
Petitioner provides the following evidence in support of “the Angus
system”: Declaration of Ms. Ginette Kurtz (“Kurtz Decl.”; Ex. 1011);6 Declaration
of Dr. Dan Moser (“Moser Decl.”; Ex. 1012); Printout from Angus’s website, 2014
(“Angus 1”; Ex. 1013); Printout from AngusSource website, 2010 (“Angus 2”;
Ex. 1014). In its Reply, Petitioner did not provide or identify any additional
evidence concerning “the Angus system.”
Patent Owner asserts that Petitioner has not met its burden of showing that
the Angus system is prior art. PO Resp. 27–35. Specifically, Patent Owner asserts
that Petitioner has not shown that Exhibits 1013 and 1014 provided sufficient
corroboration for the statements made in the Declarations of Ms. Kurtz and Dr.
Moser that the Angus system is prior art. All statements made by witnesses, and
the underlying evidence corroborating those statements, are evaluated under a “rule
of reason” framework. Cf. Fleming v. Escort Inc., 774 F.3d 1371, 1376–77 (Fed.
Cir. 2014) (citing Sandt Tech., Ltd. v. Resco Metal & Plastics Corp., 264 F.3d
1344, 1350 (Fed. Cir .2001)) (in an analogous priority of invention context, oral
testimony and corroborative evidence is “evaluated under ‘the rule of reason,’
whereby ‘all pertinent evidence is examined in order to determine whether the
[declarant’s] story is credible’”).
At the outset, we note that certain factors weigh in favor of Petitioner. Most
prominently, we find that Ms. Kurtz and Dr. Moser are not related to the real party-
in-interest for Petitioner, the American Simmental Association. Both Dr. Moser

6 In the intervening period between Ms. Kurtz’s Declaration and deposition, Ms.
Kurtz changed her name to Ms. Gottswiller. PO Resp. 28; Ex. 2033, 6:3–15. For
the purposes of consistency and clarity, we will refer only to Ms. Kurtz, as that
name was introduced earlier in time in the proceeding, and the Declaration is in the
name of Ms. Kurtz.
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and Ms. Kurtz declare that they are affiliated with the American Angus
Association, and no argument or evidence has been advanced that the American
Angus Association is related to the American Simmental Association. Pet. 1;
Ex. 1011 ¶ 1; Ex. 1012 ¶ 1. Accordingly, for this reason, in the overall “rule of
reason” framework, we accord more weight to the testimony of Ms. Kurtz and Dr.
Moser than we would an interested party. See Finnigan Corp. v. Int’l Trade
Comm’n, 180 F.3d 1354, 1369 (Fed. Cir. 1999) (“the level of interest of the
testifying witness is an important consideration when such testimony is offered to
corroborate another witness’s testimony.”)
Of course, even testimony of disinterested parties requires corroboration.
See Finnigan, 180 F.3d at 1369 (“corroboration is required of any witness whose
testimony alone is asserted to invalidate a patent, regardless of his or her level of
interest.”) To that end, Petitioner has provided Exhibits 1013 and 1014 to
corroborate the content of the Declarations of Ms. Kurtz and Dr. Moser, each of
which we examine in turn in the context of whether or not the Angus system is
prior art. And in that context, we note that neither party disputes that the relevance
of Dr. Moser’s Declaration is minimal in this regard, as Dr. Moser’s Declaration,
on its face, does not set forth any facts concerning whether or not the Angus
system is prior art, deferring such considerations to Ms. Kurtz. See generally
Ex. 1012; Ex. 2018, 34:17–35:10, 50:21–51:7. Accordingly, our analysis of this
issue will be confined to whether or not Exhibits 1013 and 1014 corroborate
sufficiently the testimony of Ms. Kurtz concerning whether or not the Angus
system is prior art, specifically, her testimony in paragraphs 4 and 6.
We begin with Exhibit 1013. The primary testimony of record concerning
any date for Exhibit 1013 is the following: “Attached hereto as Attachment B is a
document which includes printouts of an example electronic pedigree available
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through Angus’s website (‘Angus 1’). Although these printouts were generated in
2014, I am personally aware that electronic pedigrees having this layout and
information-type have been available online via the Angus website since
November 25, 2009.” Ex. 1011 ¶ 4. Examining Exhibit 1013 in detail, we note
that the only date listed is October 21, 2014, which is after the filing date of the
’557 patent. Accordingly, based on the above, we determine that Exhibit 1013 is
weak corroborative evidence of Ms. Kurtz’s testimony that the content of Exhibit
1013 was available since November 25, 2009, or at least prior to the earliest
possible priority date listed on the front of the ’557 patent. Ex. 1011 ¶ 4.
In contrast to Exhibit 1013, Exhibit 1014 includes several dates, of which
the most relevant are a revision date of March 10, 2010, and an indication that
information listed in the document is for “[c]attle to be sold 06/08/2011.” Ms.
Kurtz declares, concerning Exhibit 1014, that “[t]he revision date is the date on
which Angus, through AngusSource, began providing electronic marketing
documents to the public which have the same form, layout, and data as shown in
Angus 2. I am personally aware of this fact.” Ex. 1011 ¶ 6. On its face, Exhibit
1014 provides some corroborative evidence that the document and the information
it contains was available online at least as early as June 8, 2011, which is before
the earliest possible priority date.
When we evaluate Exhibit 1014 in light of all the evidence, however, we
determine that its corroborative value is compromised by a variety of factors, to the
point where we determine that it does not provide sufficient corroboration for Ms.
Kurtz’s testimony that the document and the information it contains was available
online at least as early as June 8, 2011. As an initial matter, we find that Exhibit
1014 was generated after every effective date. Ex. 2033, 57:7–58:6 (Ms. Kurtz
testified, concerning Exhibit 1014, that “[i]t was actually printed last year is when I
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sent those to counsel.”) We find further that in attempting to make sense of the
dates of the various documents, Ms. Kurtz had to consult the “IS department,”
which also weighs against her testimony that she was personally aware that “[t]he
revision date is the date on which Angus, through AngusSource, began providing
electronic marketing documents to the public which have the same form, layout,
and data as shown in Angus 2.” Ex. 1011 ¶ 6; Ex. 2033, 27:14–28:2. We find
additionally that changes were made at various times to the website on which
Exhibit 1014 resides, and there is no definitive evidence presented in this
proceeding as to which changes were made at which time. Ex. 2033, 28:8–31:6,
45:14–17, 46:1–47:7.
To be sure, we find Ms. Kurtz to be credible, in that after reviewing all of
the deposition testimony, we find that she was honest and sincere in trying to
provide the most accurate information possible. The problem, however, is that her
statement in the Declaration at paragraph 6, that she was personally aware that
Exhibit 1014 existed in its exact form prior to any possible date, is in conflict with
her testimony on cross-examination that she had to consult the “IS department”
concerning the mechanics of the dates printed in Exhibit 1014, and that the format
of Exhibit 1014 may have been altered between any possible priority date and the
time that Exhibit 1014 was printed.
Accordingly, given the weak corroborative value of Exhibit 1013, and the
now-discounted corroborative value of Exhibit 1014, we conclude that Exhibits
1013 and 1014, collectively, do not constitute sufficient evidence to corroborate
the Declaration of Ms. Kurtz that the Angus system is prior art.
2. Effect of Determination that the Angus System Is Not Prior Art
Given our above determination that the Angus system is not prior art, at first
glance, this would appear to be fatal to Petitioner’s obviousness case, as all of
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claims 1–20 are challenged over a combination of Wang and the Angus system.
Certainly, for claim limitations that Petitioner relied exclusively on the Angus
system, without any mention of Wang, Petitioner has not met its burden, and no
further analysis of the relevant claims is necessary. Most prominent among those
are dependent claims 7, 13, and 20, of which Petitioner’s claim chart for dependent
claim 7 is shown below.

Pet. 59. We are unpersuaded that Petitioner has shown, by a preponderance of the
evidence, that claims 7, 13, and 20 are obvious in view of Wang and the Angus
system.
When we consider the claim charts of the Petition for the other claims,
however, we see that Petitioner’s use of the Angus system is plausibly set forth in
the alternative. The most prominent example of this is the “genetic merit
scorecard” limitation recited in independent claim 8, for which Petitioner’s claim
chart is shown below.
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Pet. 61. For the aforementioned limitation, Petitioner is plausibly relying on both
Wang and the Angus system. Accordingly, even though the Angus system is
removed from consideration, we determine that Petitioner can still rely on Wang
alone for this limitation.
To be sure, if Wang is determined to be missing any element of the relevant
claim limitation, and Petitioner has not provided any explicit analysis for
modifying Wang to meet that element that does not depend on the Angus system,
Petitioner has not met its burden. Insofar as Petitioner did provide such explicit
analysis in the Petition, however, Patent Owner was on notice that the alternative
of relying on Wang alone was a possibility, and so we analyze remaining claims 1–
6, 8–12, and 14–20 with the above considerations in mind.7

7 We discern that Patent Owner noted this possibility in providing the following
section heading: “Wang and the Angus System, Taken Alone or in
Combination, Fail to Disclose All Elements of the Challenged Claims.” PO Resp.
40 (emphasis added).
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3. Petitioner’s Analysis of Claims 1–6,
8–12, and 14–19 in view of Wang Alone
Independent claim 8 recites “[a] computer-implemented method to
determine relative market value of a sale group.” Petitioner cites Wang for
disclosing methods implemented on a computer for determining a relative
economic value of animals. Pet. 59 (citing Ex. 1004 ¶ 11). Independent claim 8
recites further:
generating a genetic merit interface to display at one or more
electronic interfaces, the genetic merit interface allowing an input of a
plurality of genetic merit estimates associated with the sale group;
determining, by one or more processors, relative market value
and one or more rankings of genetic merits of the sale group responsive
to the plurality of genetic merit estimates from the genetic merit
interfaces[.]
Petitioner cites Wang for disclosing inputting pedigree, phenotypic, and molecular
genetic metrics for a breeding population, and ranking animals based on those
metrics. Pet. 59–60 (citing Ex. 1004 ¶¶ 11, 67, 72, 92, 109, 126, Fig. 2).
Independent claim 8 recites additionally outputting the aforementioned
information on a genetic merit scorecard. Although Petitioner appears to primarily
cite the Angus system for disclosing the genetic merit scorecard (Pet. 60–61, 71–
74 (citing Exs. 1013, 1014, 1015)), Petitioner also cited paragraphs 14 and 72 of
Wang in the claim charts, mentioned paragraphs 11, 67, and 121 of Wang in
connection with related limitations of independent claim 8, and in a footnote
asserted the following:
Petitioner notes that Wang actually discloses the outputting of relevant
market values and rankings thereof, which is certainly synonymous
with a “scorecard.” However, for the avoidance of doubt, Petitioner
has also utilized the Angus System for its scorecard to build on the
Examiner’s previous use of the Wang reference.
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Pet. 71 (footnote 11). As set forth above, we construe “genetic merit scorecard” as
“visual display of genetic merit information.” Wang discloses the following:
User interface considered to be useful for the various aspects of this
embodiment of the invention are configured so as to be coupled with
the computer so as to allow the user to instruct the computer to access
the available databases and allow the computer program to used [sic]
the computer’s processor to generate, as output their individual
estimated breeding value and/or one or more rankings of the animals in
the population.
Ex. 1004 ¶ 11.
A user interface including data input and retrieval systems, where the
user interface is coupled to the computer and configured to allow the
user to instruct the computer to access any combination of the available
databases and use the computer program to generate the output rankings
and individual animal estimated breeding values.
Ex. 1004 ¶ 14. Accordingly, we discern that Petitioner is asserting that the above-
cited portions of Wang disclose, at a minimum, a visual display of genetic merit
information. Petitioner provides similar analyses for claims 1–6, 9–12, and 14–19.
Consequently, our findings in regard to the prior-art status of the Angus System are
not dispositive of these claims.
4. Patent Owner’s Assertion of Non-Analogous Art
Patent Owner asserts that Wang and the claimed invention are non-
analogous art because Wang is directed to breeding of bulls while the claimed
invention is directed to feeder calf production. PO Resp. 35–40 (citing Exs. 1001,
1004, 1013, 1013, 2022, 2024). In support, Patent Owner cites extensively to the
Declaration of Dr. Brent Woodward (Ex. 2022 ¶¶ 79–81) and the Declaration of
Dr. Bruce Golden (Ex. 2024 ¶¶ 25, 26, 36–41, 45, 60, 77). We disagree, largely
because Patent Owner’s assertions are misplaced. Most of their assertions, and the
testimony of Dr. Woodward and Dr. Golden, rest on the premise that the claimed
invention is directed to feeder calf production. None of the independent claims,
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however, recites any of “feeder,” “calf,” or “production”; in fact, they do not recite
any particular animal at all.8 Instead, for the same reasons as set forth above
concerning the fundamental concept of the claimed invention for the purposes of
Section 101, we determine that the field of the claimed invention is actually
“determining an animal’s relative economic value based on its genetic and physical
traits.” When we substitute this actual field of the claimed invention for Patent
Owner’s proffered one, we determine that Patent Owner’s assertions and evidence
concerning the distinction between breeding of bulls and feeder calf production are
mostly irrelevant, and any remaining assertions that are still applicable are
unpersuasive.
Specifically, a reference is analogous art to the claimed invention if: (1) the
reference is from the same field of endeavor as the claimed invention (even if it
addresses a different problem); or (2) the reference is reasonably pertinent to the
problem faced by the inventor (even if it is not in the same field of endeavor as the
claimed invention). See In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Under
prong (1), we are unpersuaded that Wang and the claimed invention are in different
fields. Wang discloses that it “relates generally to the field of improving genetic
merit in animal species at both the individual animal and herd levels.” Ex. 1004
¶ 3. As noted above, the claimed invention is directed to “determining an animal’s
relative economic value based on its genetic and physical traits.” Fundamentally,
the two fields are almost identical in that they both are evaluations of genetic traits.
While Patent Owner may assert that Wang is technically directed to “improving
genetic merit” while the claimed invention is directed to “relative economic value
of those merits,” those are more accurately classified as applications of evaluations

8 The only express animal recitation we were able to locate in the claims is “calf”
in dependent claims 7, 13, and 20.
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of genetic merit, and we are unpersuaded that the distinction is such that one of
ordinary skill in one would have been unfamiliar with the other. Indeed, Patent
Owner admits that Wang is directed to calculating estimated breeding values
(“EBVs”) and that:
as Wang states, it is simply an extension of EBVs (i.e., breeding
values) and can be used in a breeding program “to provide an
evaluation of an animal’s value as a parent.” (Ex. 1004, ¶ [0115],
[0125]; see also Ex. 2034, 24:24–25:9 (“Those [selection] tools for
producers in the purebred industry would want to use them to select
parents based on their genetic potential to produce progeny that
would be more profitable.”).)
PO Resp. 38–39 (emphases added). Thus, as admitted by Patent Owner, breeding
and economic valuations are intermixed, supporting further our conclusion that
Wang and the claimed invention are in the same field. See Ex. 1019 ¶¶ 9–10 (“It is
common practice for ‘seedstock’ producers to sell some of their calves as feeder
calves, and for commercial cow-calf producers to use ‘seedstock’ bulls to sire their
feeder calves. (Ex. 1018, 51:4–53:6, 53:7–54:20, 55:5–56:10, 65:11–14.)”).
Having established that Wang is analogous art under prong (1) from Bigio,
we need not consider prong (2). Even if Wang, however, were not to qualify under
prong (1), we observe that under prong (2), Patent Owner’s assertions are even less
persuasive. Wang discloses the following:
Such a method would need to provide a means for quickly and
efficiently maximizing the usefulness of new understanding
regarding the function of various genes and/or combination of
genes; while at thee [sic] same time optimizing the use of phenotypic,
genotypic (e.g. SNPs) and pedigree information. This is particularly
important in traits where the phenotypes are difficult or expensive
to measure (e.g. feed intake or disease resistance/tolerance), traits that
are measured late in or life or at the end of life (e.g., longevity or meat
quality) or measurable only in one sex (e.g. milk yield, litter size or
maternal or paternal calving case).
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Ex. 1004 ¶ 5 (emphases added). The ’557 patent discloses the following:
[A] sale group of calves is valued on many attributes depending on the
ultimate purposes for the calves. The top attribute for cattle are sold to
be developed for slaughter (and not for breeding) are the tendency to
stay healthy and the genetic potential for growth, carcass merit, and
feed efficiency. Additionally, buyers of calves have considerable risk
and uncertainty. They prefer to buy superior calves, but have great
difficulty assessing the genetic merit and future healthiness of the
calves at the time of purchase.
Ex. 1001, 1:38–47 (emphases added). We find that both are squarely directed to
solving problems associated with difficulty in evaluating the genetic traits of
animals. Furthermore, we find that the inputs and desired outputs associated with
this problem are, at a minimum, overlapping. Given that, we are even more
unpersuaded that an asserted distinction between “improving genetic merit” and
“relative economic value of those merits” is sufficient to support Patent Owner’s
assertion that Wang and the claimed invention are non-analogous art.9
5. Patent Owner’s Assertion Concerning “Sale Group”
Independent claims 1, 8, and 14 each recite “sale group.” Patent Owner
asserts that Wang does not disclose “sale group” because Wang does not actually
mention the word “sale,” “purchase,” “buy,” or “sell.” Patent Owner’s assertions
are misplaced, as we construe “sale group” as “one or more animals for which a
relative market value is determined.” Petitioner cites Wang for disclosing a
selection index, where “[t]he values for the selection index are empirically and/or
subjectively determined by analyzing the market values for a given trait.” Pet. 54–
55 (citing Ex. 1004 ¶ 67). We are persuaded that this disclosure corresponds
properly to the recited “sale group.” Tellingly, Patent Owner, nor their experts,

9 Although not dispositive, we note that the Examiner cited Wang during the
prosecution of the ’557 patent.
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reference paragraph 67 of Wang in this portion of its Patent Owner Response. PO
Resp. 40–43 (citing Ex. 1004 ¶¶ 6, 11, 14, 49, 72; Ex. 2022 ¶ 89).
Patent Owner may be asserting that just because a value is determined for
one or more animals does not indicate that they are actually placed on sale. Such
an assertion would be misplaced as, under the proper construction of “sale group,”
the act of determining a relative market value of the animal itself is sufficient, even
if the animal is not actually placed on sale. Patent Owner may also be asserting
that Wang only determines values for individual animals, and not for populations
or herds of animals. Again, such an assertion would be misplaced, as a proper
construction of “sale group” only requires determining a relative market value for
one animal.
6. Patent Owner’s Assertion Concerning the “Determining” Step
Independent claim 8 recites “determining, by one or more processors,
relative market value and one or more rankings of genetic merits of the sale group
responsive to the plurality of genetic merit estimates from the genetic merit
interfaces.” Independent claims 1 and 14 each recite similar limitations.
Patent Owner asserts that Wang does not disclose the aforementioned claim
limitation, because Wang only provides a selection index and ranking of individual
animals, and not for populations or herds of animals. PO Resp. 43–46 (citing Ex.
1001; Ex. 1004 ¶¶ 67, 68, 72, 121; Ex. 2022 ¶¶ 94, 96, 98–100; Ex. 2024 ¶¶ 41, 48,
62, 69–71; Ex. 2034, 4:4–9, 46:4–15). Patent Owner’s assertions are misplaced, as
“sale group” is properly construed as “one or more animals for which a relative
market value is determined,” which indicates that Wang’s disclosure of
determining a selection index and ranking for a single animal is sufficient.
Patent Owner asserts further that Wang does not disclose determining the
“relative market value” of the sale group, because the selection index in Wang can
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only be used to compare animals of the exact same breed. PO Resp. 46–50 (citing
Ex. 1001; Ex. 1014; Ex. 2022 ¶¶ 31–36, 93, 101, 104; Ex. 2024 ¶¶ 30, 40, 41, 57,
60–62; Ex. 2033, 61:16–25, 62:1–14; Ex. 2034, 76:6–14). Patent Owner’s
assertions are misplaced, as we construe “relative market value” as “the market
value of a sale group as compared to the market value of at least one other market
group.” Patent Owner does not dispute that two animals of the same breed can be
compared using selection indices, which is sufficient to meet “relative market
value.”
Moreover, even if “relative market value” were construed to require
allowing the ability to compare across breeds, we are unpersuaded that the
selection indices of Wang would be insufficient. Specifically, Patent Owner
asserts that because different breeds have different breed baselines, the resulting
selection indices, which themselves are aggregations of expected breeding values,
are not directly comparable. Patent Owner’s assertions are misplaced. Wang
discloses that relative values can be expressed in any “biological or economic
units,” and dollar values are used as an example for both expected breeding values
and selection indices. Ex. 1004 ¶ 67. Two different selection indices that are each
expressed in dollar values are directly comparable. Patent Owner may be asserting
that the dollar values for different breeds are not a perfect comparison because
different baseline values are used. Patent Owner has not identified any claim
language, however, that requires a perfect comparison, and, indeed, the very nature
of valuation is one where comparisons are subjective, and, thus, imperfect. The
fact that selection indices would be expressed in the same units, and those same
units are, by their very nature, directly comparable is enough to meet the recited
determining of “relative market value.”
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Furthermore, even if a “more comparable” comparison was required, we
note the similarity in formulas disclosed in Wang and the ’557 patent, respectively,
for calculating selection indices and relative market value. In Wang, the formula
is:
I = (0.4)(EBVbw) + (2.0)(EBVIp)
Ex. 1004 ¶ 67. In the above formula of Wang, I is “selection index,” EBVbw is
“expected breeding value based on body weight),” and EBVIp is “expected
breeding value based on lead percentage.” In the ’557 patent, the formula is:

Ex. 1001, 20:37–43. Here, α is the intercept, which for the purposes of our
analysis is essentially irrelevant, the various βs are economic weighting factors,
and EPDs are “expected progeny differences.” As such, the formulas are
functionally identical. In order to calculate a selection index or relative market
value, one does a summation of “expected breeding values” or “expected progeny
differences,” with each “expected breeding value” or “expected progeny
differences” multiplied by a coefficient. And given the relatively high level of
ordinary skill articulated above, we are persuaded that one of ordinary skill at that
level would have been able to compensate for any differences between “breeding
values” and “progeny differences,” especially when both were known to be able to
be able to be expressed in dollar values (Ex. 1001, Figs. 6, 7A, 7B; Ex. 1004 ¶ 67),
and, using rudimentary mathematics, would appear to be adaptable and scalable to
any number of animals in any number of different breeds or species. See also Ex.
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1019 ¶ 18 (citing Ex. 1023) (“[m]ulti-breed EPDs and Indices aside, even breed-
specific EPDs can be converted from one breed base to another”).
7. Patent Owner’s Assertion Concerning the
“Outputting” a “Genetic Merit Scorecard”
Independent claim 8 recites
outputting to one or more electronic interfaces a genetic merit scorecard
for the sale group responsive to determining the relative market value
and one or more rankings of genetic merits of the sale group, the genetic
merit scorecard including the relative market value and one or more
rankings of genetic merits of the sale group.
Independent claims 1 and 14 each recite a similar claim limitation.
Patent Owner asserts that Wang does not disclose outputting this genetic
merit scorecard, because Wang does not depict expressly what its program output
would look like. PO Resp. 50–51 (citing Ex. 1001; Ex. 1004 ¶¶ 3, 14; Ex. 2022
¶ 109). Although we agree with Patent Owner that Wang does not disclose
expressly the exact format of the program output, we disagree that this omission
indicates that Wang does not disclose outputting a genetic merit scorecard. As set
forth above, we construe “genetic merit scorecard” as “visual display of genetic
merit information” which, when placed in the context of the “outputting”
limitation, becomes “visual display of relative market value and one or more
rankings of genetic merits,” which does not require any particular format for the
output. Wang discloses the following:
User interface considered to be useful for the various aspects of this
embodiment of the invention are configured so as to be coupled with
the computer so as to allow the user to instruct the computer to access
the available databases and allow the computer program to used [sic]
the computer’s processor to generate, as output their individual
estimated breeding value and/or one or more rankings of the
animals in the population.
Ex. 1004 ¶ 11 (emphasis added).
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A user interface including data input and retrieval systems, where the
user interface is coupled to the computer and configured to allow the
user to instruct the computer to access any combination of the
available databases and use the computer program to generate the
output rankings and individual animal estimated breeding values.
Ex. 1004 ¶ 14 (emphasis added). We find these descriptions of “output” in a “user
interface” teach the visual display of values and rankings. While in theory, the
output in Wang could be just a computer-to-computer output that is never visible to
the user, we are unpersuaded that such a position is credible, and even if it were,
are persuaded that it would have been a modification inescapably apparent to one
of ordinary skill viewing the above-cited portions of Wang, in the context of
obviousness, in 2013.
Patent Owner asserts that Wang does not disclose the “outputting” limitation
being one of several sequentially cascading steps beginning with the recited
“generating” step which receives “genetic merit estimates.” PO Rep. 53–55 (citing
Ex. 1001; Ex. 2022 ¶¶ 116, 117). We disagree. Fundamentally, we are unclear
how the output ranking and breeding values of Wang could be generated without
first having the expected breeding values inputted into the database of Wang’s
system.
Insofar as Patent Owner may be asserting that inputting “genetic merit
estimates” into the system results in an output of a genetic merit scorecard without
further input from the user, we disagree, as that is not commensurate in scope with
the express language of the independent claims. As noted by Patent Owner, the
“generating,” “determining,” and “outputting” steps of the independent claims
must be performed in sequence, however, there is no indication that any of those
steps must be performed without any intermittent human intervention.
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8. Secondary Considerations
Patent Owner asserts that even if Wang discloses or suggests every
limitation recited in the claims, certain objective evidence of secondary
considerations weighs against a determination of obviousness. PO Resp. 69–74.
We disagree, largely because we determine Patent Owner’s multiple theories of
secondary considerations to be cursory, without adequate explanations and factual
bases as to how any of them demonstrate what Patent Owner says they
demonstrate.
For example, Patent Owner asserts that Petitioner’s copying of the patented
tool supports their assertion of non-obviousness. PO Resp. 69–71. Patent Owner’s
assertions are misplaced, because we are unpersuaded Patent Owner has shown
copying. As an initial matter, Patent Owner asserts that Petitioner copied its
Reputation Feeder Cattle tool. Patent Owner, however, has not provided any
explanation, in its assertions concerning secondary considerations, as to what
exactly the Reputation Feeder Cattle tool is, and how it is relevant to the claimed
invention. Earlier in the Patent Owner Response, Patent Owner does refer to a
“revolutionary technological tool (which it called ‘Reputation Feeder Cattle’),”
and then asserts in a footnote that “[t]he Reputation Feeder Cattle tool embodies
the invention described in the ’557 Patent. (Ex. 2002, ¶ 2; Ex. 2003, ¶ 3).”
PO Resp. 18–19. This, however, is merely a conclusory assertion, without any
underlying explanatory or factual analysis as to the relationship between the
Reputation Feeder Cattle tool and the claimed invention, and, thus, is entitled to
little weight. The citations to Exhibits 2002 and 2003 do not assist Patent Owner
in this regard, as they merely recite that the Declarants are named-inventors of
various patents and patent applications, including the ’557 patent.
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We note in the ’557 patent a “Reputation Feeder Cattle” program, which
refers to Figures 7A and 7B (Ex. 1001, 31:66–32:7). That “program,” however,
appears not to be a “software program,” but a livestock certification program in the
theme of “a planned, coordinated group of activities, procedures, etc., often for a
specific purpose, or a facility offering such a series of activities.”
http://www.dictionary.com/browse/program (accessed June 9, 2016). The
relationship between this certification program and the claimed invention,
however, is unclear and undeveloped.
Moreover, Patent Owner then asserts that Petitioner’s “Feeder Profit
Calculator includes each and every element of Patent Owner’s tool as embodied,
for example, in Claim 16 of the ’557 Patent.” PO Resp. 69 (citing Ex. 2020).
There are several problems with this assertion. First, claim 16 in the ’557 patent is
a dependent claim. Presumably based on the claim language in Exhibit 2020,
Patent Owner meant to refer to independent claim 16 of the ’888 patent. This is
problematic, however, as the language of independent claim 16 of the ’888 patent
differs from the language set forth in any independent claim of the ’557 patent.
While Patent Owner may be asserting that the differences between those claims are
so inconsequential as not affect materially their analysis of Petitioner’s Feeder
Profit Calculator and the claimed invention, we have no way of knowing if this is
the case, because Patent Owner has not asserted provided such analysis or provided
us evidence to evaluate independently the validity of that unmade assertion.
Which brings us to the next problem. Patent Owner has not provided any
explanation or evidence, in its assertions concerning secondary considerations, as
to the features of the Feeder Profit Calculator, other than to say it is covered by a
claim of the ’557 patent. Putting aside the fact that the reference to Exhibit 2020
appears like an attempt to improperly incorporate arguments by reference (37
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C.F.R. § 42.6(a)(3) (“[a]rguments must not be incorporated by reference from one
document into another document”), when Exhibit 2020 is considered, it does not
provide any details concerning the Feeder Profit Calculator, because the details of
the Feeder Profit Calculator appear to be in “Exhibit E” of Exhibit 2020, which
does not exist in the filed copy of Exhibit 2020. Accordingly, even when Exhibit
2020 is considered in full, Patent Owner is essentially asking the Board to find that
the Feeder Profit Calculator is embodied by the claimed invention, without
providing any factual basis for the Board to compare the Feeder Profit Calculator
with the claimed invention. We decline to do so.
Earlier in the Patent Owner Response, Patent Owner does refer to the
“‘Feeder Profit Calculator” (the ‘Competing Tool’).” PO Resp. 20–22 (citing Exs.
2002, 2003, 2030). Neither this portion of the Patent Owner Response, however,
nor Exhibits 2002 or 2003, provides any further details concerning the features of
the Feeder Profit Calculator. Exhibit 2030 does finally provide some details,
however, again, Patent Owner has not provided any analysis in the Patent Owner
Response, or any other substantive paper, that analyzes the relationship between
Exhibit 2030 and the claimed invention.
Patent Owner asserts that Petitioner’s position that Patent Owner must
actually prove infringement of a claim in order to show copying is incorrect, and
cites Wyers v. Master Lock Co., 616 F.3d 1231, 1246 (Fed. Cir. 2010) for the
proposition that “copying requires evidence of efforts to replicate a specific
product, which may be demonstrated through . . . access to the patented product
combined with substantial similarity to the patented product.” We agree. The
problem, however, is that we are unpersuaded that Patent Owner has shown that its
Reputation Feeder Cattle tool corresponds properly to the “patented product,” or
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that the Petitioner’s Feeder Profit Calculator is “substantial[ly] similar to the
patented product,” for the reasons articulated above.
Patent Owner makes additional assertions concerning “long felt but unsolved
needs,” “praised by customers,” and “commercially successful.” PO Resp. 71–74.
These are unpersuasive largely for the same reasoning set forth above with respect
to copying, namely, that Patent Owner has not provided any explanation as to what
exactly the Reputation Feeder Cattle tool is, and how it is relevant to the claimed
invention. Accordingly, we are unable to evaluate properly, for example, the
relevance to the claimed invention of the purported praised by customers, or the
industry in general, set forth in the numerous Exhibits cited by Patent Owner. PO
Resp. 72–73 (citing Exs. 2004, 2036–2043).
9. Conclusion
For the foregoing reasons, we are persuaded that Petitioner has shown, by a
preponderance of the evidence, that claims 1–4, 8–12, 14–19 are obvious in view
of Wang alone.
We are unpersuaded, however, that Petitioner has shown, by a
preponderance of evidence, that dependent claims 7, 13 and 20 are obvious in view
of Wang alone.
E. Patent Owner’s Motion to Amend
Patent Owner requests, should independent claims 1 and 8 be determined to
be unpatentable, cancellation of claims 1–13, and entry of substitute claims 21–31.
PO Amend. 1–25 (citing Exs. 1001, 1003, 1004, 1013, 1014, 2002, 2003, 2018,
2022, 2024, 2027, 2034, 2045). Petitioner opposes the request. Pet. Resp. 1–25
(citing Exs. 1001, 1004, 1013–1014, 1016, 1017–1019, 1024–1027, 1028). Patent
Owner replies. PO Reply 1–12 (citing Exs. 1001, 1004, 1017, 1019, 2022, 2024,
2049–2050, 2054).
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1. Procedural Burdens
Patent Owner has the burden of proving patentability of a proposed
substitute claim. See Nike, Inc. v. Adidas AG, 812 F.3d 1326, 1334 (Fed. Cir.
2015) (“[T]he Board permissibly interpreted [37 C.F.R. § 42.20(c)] as imposing
the burden of proving patentability of a proposed substitute claim on the movant:
the patent owner.”) Accordingly, we determine, at a minimum, that Patent Owner
has the burden of showing that (1) the substitute claims overcome all the grounds
under which independent claims 1 and 8 were determined to be unpatentable,
namely, 35 U.S.C. §§ 101, 103; and (2) its request meets all the procedural
requirements concerning motions to amend set forth in our rules, Idle Free
Systems, Inc. v Bergstrom, Inc., Case IPR2012-00027 (PTAB June 11, 2013)
(Paper 26) (informative), and MasterImage 3D, Inc. v. RealD Inc., Case IPR2015-
00040 (PTAB July 15, 2015) (Paper 42) (precedential). See Microsoft Corporation
v. Proxyconn, Inc., 789 F.3d 1292, 1307 (Fed. Cir. 2015) (opining that “we cannot
say that the PTO has abused its discretion in choosing adjudication over
rulemaking” in setting forth rules concerning motions to amend).
2. Whether Substitute Claims Are Patentable Under 35 U.S.C. § 101
Patent Owner asserts that substitute independent claims 21 and 27 meet the
requirements of reciting statutory subject matter under 35 U.S.C. § 101.
PO Amend. 11–16, 21–22; PO Reply 5–9. Specifically, Patent Owner asserts that
insofar as there was any ambiguity that independent claims 1 and 8 recite statutory
subject matter under either prong of Alice, substitute independent claims 21 and 27
remedy those ambiguities. After considering all arguments and evidence, we are
unpersuaded that Patent Owner has met its burden concerning this issue.
Patent Owner asserts that substitute independent claim 21 is no longer
directed to a “fundamental, longstanding economic practice,” because “[i]t has not
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been a longstanding practice to analyze and measure the relative market value and
rank of feeder calves using genetic merit estimates associated with that sale
group.” PO Amend 11–12. As an initial matter, we are unclear as to how Patent
Owner desires for its argument to be applied to the framework of Alice. Assuming
that Patent Owner desires for it to be applied to the “abstract idea” prong of Alice,
we determined above that the fundamental concept underlying independent claim 1
is “determining an animal’s relative economic value based on its genetic and
physical traits.” Accordingly, we discern that Patent Owner asserts that the
fundamental concept underlying substitute independent claim 21 differs from that
set forth above for independent claim 1. The main differences we ascertain
between the aforementioned fundamental concept and Patent Owner’s assertions
appears to be the addition of the words “feeder calves” and the deletion of the
words “and physical.” Accordingly, we assume that Patent Owner desires the
fundamental concept underlying substitute independent claim 21 to be altered to
“determining feeder calves’ relative economic value based on its genetic and
physical traits.”
We are unpersuaded that the underlying fundamental concept is materially
altered by the amendment advocated for by Patent Owner. Beginning with “feeder
calves,” “feeder calves” are still animals, and we are unpersuaded that Patent
Owner has shown sufficiently that “determining a relative economic value based
on [the] genetic and physical traits” of “feeder calves” differs materially from that
of other animals, in that we are unclear as to how a relative economic value for any
animal would be determined based on anything other than genetic and physical
traits. To be sure, we acknowledge that in the entire universe “genetic and
physical traits” for all animals, only a subset would be applicable to “feeder
calves.” That is true, however, for any animal. To that end, our analysis here is
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largely similar to that set forth above concerning whether Wang and the claimed
invention are analogous art.
Moreover, even if the fundamental concept were altered in that manner, we
are unpersuaded that Patent Owner has shown sufficiently that “determining feeder
calves’ relative economic value based on its genetic and physical traits” is not a
“fundamental, longstanding economic practice.” Petitioner asserts, and we agree,
that cattle have been sold for centuries (Pet. 31 (citing Ex. 1015 ¶ 52)), and we are
unpersuaded that at least some of that cattle would not have been “feeder calves.”
For the deletion of “and physical,” we are unpersuaded that the fundamental
concept should be altered in that manner. As an initial matter, Patent Owner does
not identify any specific claim amendments that would justify such an alteration.
When we consider the claim amendments themselves, it would appear that the
references to “genetic merit estimates” may serve as a plausible basis for such an
alteration, but independent claim 1 already recited “genetic merit scorecard” and
“genetic merits,” and so we are unclear as to how the addition of the word
“estimates” justifies deletion of “and physical.” Furthermore, Patent Owner has
not provided any claim construction of “genetic merit estimates” that may clarify
this confusion, which alludes to the more foundational problem with Patent
Owner’s assertion: that there is a sufficient difference between genetic traits and
physical traits, such that focusing on the former to the exclusion of the latter would
substantively alter the fundamental concept from one that is a “fundamental,
longstanding economic practice” to one that is not. We disagree that it would.
Specifically, Patent Owner asserts the following:
It has not been a longstanding practice to analyze and measure the
relative market value and rank of feeder calves using genetic merit
estimates associated with that sale group. (Ex. 2022, ¶ 135.) The prior
art of record does not suggest that sale groups of feeder calves have
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ever been valued in such a way—let alone that it is ubiquitous. (Ex.
2022, ¶ 64.) Sale groups of feeder calves have instead typically been
treated like a commodity, based on market averages, with prices tied to
easily visible characteristics like fleshiness and weight. (Ex. 2022,
¶ 44; Ex. 2024, ¶ 47.)
PO Amend. 11–12; PO Reply 7–8. Essentially, we are unpersuaded that physical
traits such as “easily visible characteristics like fleshiness and weight” are so
readily divorced from genetic traits, as physical traits are often times merely
physical manifestations of those genetic traits. We are, thus, further unpersuaded
that a cattle buyer of antiquity, when evaluating the “fleshiness and weight” of a
feeder calf, was not in fact evaluating the genetic traits of that feeder calf
concerning “fleshiness and weight.” Perhaps if substitute claim 21 recited claim
language that expressly indicated only genetic traits that did not manifest in
physical traits were to be considered, Patent Owner’s proposed alteration would be
persuasive in this regard. Absent such claim language or analysis, however, we are
unpersuaded that the proposed deletion of “and physical” is warranted.
Patent Owner asserts further that substitute independent claim 21 does not
“cover the general practice of determining the market value of animals.”
PO Amend. 12–15; PO Reply 7–9. Again, while not entirely clear how Patent
Owner desires this assertion to be applied to the framework of Alice, we assume
that Patent Owner desires for it to be applied to the first prong of Alice.
Accordingly, based on the claim language specified at pages 12, 13, and 15, and
the reference to DDR Holdings, we discern that Patent Owner asserts that the
aforementioned fundamental concept should be altered to one rooted in computer
technology. When we look at the added claim language, we identify two specific
additional claim limitations that could plausibly support altering the
aforementioned fundamental concept in the way desired by Patent Owner. Upon
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evaluating those claim limitations, however, we are unpersuaded that the
aforementioned fundamental concept should be altered in any way.
The first claim limitation is
the remote server computer further accesses a plurality of remote
databases in determining the relative market value and the one or more
rankings of genetic merits, the plurality of remote databases including
one or more first databases containing genetic information for a first
breed of cattle associated with the sale group and one or more second
databases containing genetic information for a second breed associated
with the sale group.
When we strike out the computer-related terms, however, we are left with the
following paraphrase: “in determining the relative market value and the one or
more rankings of genetic merits, acquiring genetic information for a first breed of
cattle associated with the sale group and genetic information for a second breed
associated with the sale group.” This is instructive for two reasons. One, even
when striking out the computer-related terms, the resulting paraphrase is logical
and purposeful. By contrast, the problem and solutions in DDR Holdings make no
sense when the computer-related terms are removed. Second, the resulting
paraphrase is a natural extension of the fundamental concept of “determining an
animal’s relative economic value based on its genetic and physical traits,” in that in
order to determine “an animal’s relative economic value based on its genetic and
physical traits,” the genetic and physical traits must first be acquired. Accordingly,
the paraphrase informs, and, thus, we are unpersuaded that there is a need to alter,
the fundamental concept articulated above.
The second claim limitation is
dynamically generating, by one or more processors at the remote server
computer, the genetic merit scorecard for the sale group responsive to
determining the relative market value and one or more rankings of
genetic merits of the sale group; and outputting to the one or more
electronic interfaces at the first computer, responsive to the remote
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server computer generating the genetic merit scorecard, the genetic
merit scorecard including the relative market value and one or more
rankings of genetic merits of the sale group.
Our above analysis even more applicable here, as after striking out the computer-
related terms, all we are left with is the aforementioned fundamental concept.
Insofar as Patent Owner intends to confer significant weight on the term
“dynamically,” “dynamically” may appear to add a temporal and/or
methodological restrictions to the “generating” step, however, given that Patent
Owner did not provide any claim construction of “dynamically,” we are unclear as
to the nature of those temporal and/or methodological restrictions. Absent that
analysis, we are unpersuaded that addition of “dynamically” alters appreciably our
above determinations.
Patent Owner asserts further the following:
Claim 21 also cites “significantly more” than an abstract idea.
As a preliminary matter, claim 21 is confined to a particular useful
application: analysis and measurement of the market potential
(including value and rank) of sale groups of feeder calves that are
available for purchase on the marketplace. (Ex. 2022, ¶¶ 70–71, 135.)
This alone represents an improvement in the technical field because all
prior art methods to value such animals were based on commodity-type
pricing tied to easily visible characteristics. (Ex. 2022, ¶ 37; Ex. 2024,
¶ 47.)
PO Amend. 13; PO Reply 7–8. Patent Owner appears to be distinguishing “pricing
a commodity” from “determining a relative market value.” We are unpersuaded
there is a difference, and certainly not a difference sufficient to constitute
“significantly more.”
Patent Owner asserts additionally that substitute independent claim 21 is
necessarily rooted in computer technology, like that recited in DDR Holdings and
other cases, because “[t]he software transforms these results into dynamically-
generated scorecards available on demand by users interested in purchasing the
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sale group, with the results and each scorecard able to be tailored to each
individual user depending on their circumstances.” PO Amend. 14–16. As an
initial matter, for the reasons set forth supra, we are unpersuaded substitute
independent claim 21 is necessarily rooted in computer technology. Of course, the
recitation of computer components performing operations requires programming,
but the added claim limitations are non-specific as to how any of the “transforms,”
“dynamically,” and “tailoring” occurs; it merely recites an input and a result.
Absent more specificity as to how the input arrives at the result, we are
unpersuaded that the computer technology that performs the operation is anything
more than generic, and, thus, not “significantly more” for the reasons outlined
above.
Patent Owner makes similar assertions, as set forth above for substitute
independent claim 21, for substitute independent claim 27. Although substitute
independent claim 27 appears to make substantially more amendments relative to
independent claim 8, when those amendments are analyzed substantively, Patent
Owner’s assertions concerning substitute independent claim 27 are unpersuasive
for the same reasons as set forth above for substitute independent claim 21.
Specifically, we are unpersuaded that any of the claim amendments relative to
independent claim 8, such as “feeder cattle,” “sires,” “dams,” and “national
average market value,” warrant altering the proffered fundamental concept of
“determining an animal’s relative economic value based on its genetic and physical
traits.” While “feeder calves,” “sires,” “dams,” and “national average market
value,” may be more specific applications of the proffered fundamental concept,
we are unpersuaded that they do not fall under the rubric of “determining an
animal’s relative economic value based on its genetic and physical traits,” or recite
anything “significantly more.” See OIP Techs. Inc. v. Amazon.com, Inc., 788 F.3d
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1359, 1361–63 (Fed. Cir. 2015); Graff/Ross Holdings LLP v. Fed. Home Loan
Mortg. Corp., 892 F. Supp. 2d 190 (D.D.C. 2012), aff’d per curiam at 604 Fed.
Appx. 930 (Fed. Cir. 2015). For example, “feeder calves,” “sires,” and “dams” are
all animals, and “national average market value” is a basis that can be used to
determine a relative economic value. See also Am. Simmental Ass’n v. Leachman
Cattle of Colo., LLC, Case PGR2015-00005, slip. op at 34–37 (PTAB June 14,
2016) (Paper 56) (analysis of substitute claim 26).
3. Whether Patent Owner Met Certain Procedural
Requirements Concerning Motions to Amend
Petitioner asserts that Patent Owner did not meet certain procedural
requirements, and, thus, asserts that the Motion to Amend should be denied. Pet.
Resp. 3–10. While it is unnecessary to opine on all of Petitioner’s assertions, as
Patent Owner has not met its burden of showing the patentability of substitute
claims 21–31 in view of 35 U.S.C. § 101, we determine that some of Petitioner’s
assertions merit discussion.
Petitioner asserts that Patent Owner was too ambitious in the number of
substitute claims and claim amendments it pursued, and in doing so, failed to
properly construe new claim terms, as required under Idle Free Systems, Inc. v.
Bergstrom, Inc., Case IPR2012-00027, slip op. at 7 (PTAB June 11, 2013) (Paper
26) (informative) (“A patent owner should identify specifically the feature or
features added to each substitute claim, as compared to the challenged claim it
replaces, and come forward with technical facts and reasoning about those
feature(s), including construction of new claim terms, sufficient to persuade the
Board that the proposed substitute claim is patentable over the prior art of record,
and over prior art not of record but known to the patent owner.”). For example,
Petitioner asserts that “environmental conditions,” as recited in substitute
independent claim 27, requires an express construction because while the ’557
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patent may literally recite “environmental conditions” (Ex. 1001, 12:58–61), the
subsequent discussion in the ‘557 patent is to “[e]nvironmental factors like
weather, parasites and stress” (Ex. 1001, 12:63–65), and so without an express
construction, it is unclear (1) whether “environmental conditions” and
“environmental factors” are the same, and (2) whether the scope of “environmental
conditions” is limited to “weather, parasites and stress,” and if not, what additional
conditions are included. We disagree with Petitioner that Patent Owner’s Motion
to Amend should be denied because Patent Owner did not provide an express
construction of “environmental conditions.” As identified by Patent Owner, the
’557 patent recites expressly “environmental conditions,” and while the subsequent
discussion in the ’557 patent does used the word “factor” instead of “condition,”
we are persuaded that the proximity of terms and the open-ended nature of the
discussion indicates sufficiently that “environmental conditions” includes but is not
limited to “weather, parasites and stress,” and that such a construction would have
been apparent to one of ordinary skill, even without an express construction by
Patent Owner.
By contrast, we are persuaded by Petitioner’s assertion that “simulation of
rankings,” as recited in substitute independent claim 27, does require an express
construction, or at least an explanation as to its meaning, and that none was
provided by Patent Owner. Specifically, the relevant portion of the claim
limitation reads
activate the genetic merit interface to cause the genetic merit scorecard
to display on the one or more electronic user interfaces responsive to
transmission of the data representing the genetic merit scorecard, the
genetic merit scorecard including a simulation of rankings of genetic
merits of the sale group and the relative market value of the sale group.
Patent Owner has not identified, and we are unable to locate independently, any
recitation in the ’557 patent of “simulation of rankings.” In the ’557 patent, we
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have been able to identify several references to “simulation models” and
“economic outcomes” or “relative values.” See Ex. 1001, 7:37–39, 8:7–10, 8:35–
38, 8:61–63, 14:55–58, 17:55–58, 17:61–64, 19:12–16, 19:55–60, 21:19–21,
26:13–15, 44:1–17. Those references, however, do not appear to have anything to
do with “simulation of rankings.” Although we are cognizant that a patent
specification does not need to recite word-for-word a claim limitation, when there
is no clear relationship between claim language and the patent specification, it is
incumbent on Patent Owner to provide either a claim construction, or explanation,
to bridge the apparent gap. By failing to do so here, we agree with Petitioner that
Patent Owner has not met its procedural burden concerning the patentability of
substitute independent claim 27.
4. Conclusion
For the foregoing reasons, we conclude that Patent Owner has not met its
burden of showing that substitute claims 21–31 are patentable.
F. Patent Owner’s Motion to Exclude
Patent Owner seeks to exclude (1) Exhibits 1013 and 1014, and (2) Exhibits
1024, 1026, and 1027. PO Mot. 1–15; PO Mot. Reply 1–5. For Exhibits 1013 and
1014, Patent Owner’s assertions appear to go more to the weight to be given the
Exhibits as opposed to their admissibility. In any case, even when Exhibits 1013
and 1014 were considered, we determined above that Petitioner had not met its
burden of showing that the Angus system was prior art. Accordingly, Patent
Owner’s request is dismissed as moot.
For Exhibits 1024, 1026, and 1027, the Board did not rely on any of these
Exhibits in rendering its determinations. Accordingly, Patent Owner’s request here
is also dismissed as moot.
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Patent 8,725,557

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III. CONCLUSION
Petitioner has demonstrated, by a preponderance of the evidence, that claims
1–20 of the ‘557 patent are unpatentable. Patent Owner’s Motion to Amend is
denied. Patent Owner’s Motion to Exclude is dismissed as moot.

IV. ORDER
In consideration of the foregoing, it is hereby:
ORDERED that claims 1–20 of the ’557 patent are held unpatentable;
FURTHER ORDERED that Patent Owner’s Motion to Amend is denied;
FURTHER ORDERED that Patent Owner’s Motion to Exclude is dismissed
as moot; and
FURTHER ORDERED that because this is a final written decision, parties
to the proceeding seeking judicial review of the decision must comply with the
notice and service requirements of 37 C.F.R. § 90.2.

PGR2015-00005
Patent 8,725,557

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For PETITIONER:
Dan Cohn
Dan.cohn@huschblackwell.com
Samuel Digirolamo
Samuel.digirolamo@huschblackwell.com
Michael Annis
mike.annis@huschblackwell.com

For PATENT OWNER:
Jeffrey Whittle
Jeffrey.whittle@hoganlovells.com
Celine Crowson
Celine.crowson@hoganlovells.com
Joseph Raffetto
Joseph.raffetto@hoganlovells.com