American Simmental Associationv.Leachman Cattle of Colorado, LLC

Patent Trial and Appeal Board

Jun 13, 2016

14011304 (P.T.A.B. Jun. 13, 2016)

Trials@uspto.gov Paper No. 56
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 PGR2015-00003
Patent 8,660,888 B2
____________

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

PGR2015-00003
Patent 8,660,888 B2

2
I. INTRODUCTION
A. Background
American Simmental Association (“Petitioner”) filed a Corrected Petition
(“Pet.”) for post-grant review of claims 1–20 of U.S. Patent No. 8,660,888 B2
(“the ’888 patent”) (Ex. 1001) pursuant to 35 U.S.C. §§ 321–329. Paper 6.
Leachman Cattle of Colorado, LLC (“Patent Owner”) filed a Preliminary
Response. Paper 11; “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 19 (“Dec.”). After institution of trial, Patent Owner filed a Patent Owner
Response (Paper 37, “PO Resp.”) and Petitioner filed a Reply (Paper 40,
“Pet. Reply”). Patent Owner also filed a Motion to Amend (Paper 36, “PO
Amend.”) to which Petitioner filed a Response (Paper 41, “Pet. Resp.”) and Patent
Owner filed a Reply (Paper 44, “PO Reply”). Patent Owner filed a Motion to
Exclude (Paper 48, “PO Mot.”), to which Petitioner filed a Response (Paper 51,
“Pet. Mot. Resp.”) and Patent Owner filed a Reply (Paper 52, “PO Mot. Reply”).
An oral hearing was held on March 1, 2016. Paper 55 (“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 ’888 Patent
The ’888 patent relates generally to genetic quality and relative market value
of livestock. Ex. 1001, 1:21–23. The ’888 patent further discloses the following:
PGR2015-00003
Patent 8,660,888 B2

3
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, 1:23–27. Ranchers invest significant amounts of money to build quality
herds of livestock with desired genetic merits. Ex. 1001, 1:29–30. 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, 1:33–36. Therefore,
according to the ’888 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, 1:46–48.
C. Related Matters
Petitioner and Patent Owner identify the following reissue application
involving the ’888 patent: 14/516,353 (“the ’353 application”). Pet. 1; Paper 9, 2.1
Patent Owner identifies additionally the following related patents and patent
applications: U.S. Patent No. 8,725,557 (“the ’557 patent”); U.S. Patent
Application No. 14/516,372 (re-issue of the ’557 patent) (“the ’372 application”);
PCT/US2014/019775; U.S. Patent Application No. 14/226,236; and U.S. Patent
Application No. 14/286,857. Paper 9, 2.2

1 Patent Owner lists the ’353 application as a reissue application for U.S. Patent
No. 8,725,557. Petitioner, however, lists the ’353 application as a reissue
application of the ’888 patent, and our independent analysis of public records
confirms that Petitioner is correct. Accordingly, we treat Patent Owner’s
identification as an inadvertent, clerical error.
2 Patent Owner lists the ’372 application as a reissue application for the ’888
patent. Based on Petitioner’s representations, however, concerning the ’353
application and our own independent analysis of the relevant public records, we
determine that the ’372 application is a reissue application of the ’557 patent.
PGR2015-00003
Patent 8,660,888 B2

4
Petitioner and Patent Owner additionally assert that there are currently no
pending district court proceedings concerning the ’888 patent. Pet. 1; Paper 9, 3.
Petitioner also has filed a Petition for post-grant review of the ’557 patent:
PGR2015-00005.
D. Illustrative Claim
Independent claim 16 is reproduced below:
16. A computer-implemented method to determine relative
market value of a sale group, the sale group including cattle that are fed
and harvested for beef production, the method comprising:
determining, by one or more processors, a plurality of economic
weighting factors responsive to a plurality of genetic merit estimates
associated with the sale group and one or more economic outcomes;
determining, by one or more processors, relative market value
and ranking of the genetic merits of the sale group responsive to the
plurality of genetic merit estimates and the plurality of economic
weighting factors; and
outputting to one or more electronic interfaces, positioned to
display an online genetic merit scorecard to thereby define one or more
genetic merit interfaces, the online genetic merit scorecard for the sale
group responsive to determining the relative market value and the
ranking of the genetic merits of the sale group, the online genetic merit
scorecard including the relative market value and one or more rankings
of genetic merits of the sale group being displayed on the one or more
genetic merit interfaces.
E. Instituted Grounds of Unpatentability
A trial was instituted as to the unpatentability of claims 1–20 on the
following grounds:

Accordingly, we treat Patent Owner’s identification as an inadvertent, clerical
error.
PGR2015-00003
Patent 8,660,888 B2

5
Reference(s) Basis Challenged Claim(s)
(not applicable) § 101 1–20
Wang3 and the Angus system4 § 103 1–4 and 6–20
Wang, the Angus system, and
Goddard5
§ 103 5
Petitioner also cites the Declaration of Dr. Matthew Spangler (Ex. 1016; “the
Spangler Decl.”).
F. Eligibility of Patent for Post-Grant Review
The post-grant review provisions of the Leahy-Smith America Invents Act
(“AIA”)6 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).

3 US 2007/0105107 A1, pub. May 10, 2007 (“Wang”; Ex. 1004).
4 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).
5 M E Goddard, Selection Indices for Non-linear Profit Functions, 64 Theor. Appl.
Genet. 339–344 (1983).
6 Pub L. No. 112-29, 125 Stat. 284 (2011).
PGR2015-00003
Patent 8,660,888 B2

6
Petitioner asserts that the ’888 patent is a first-to-file patent, and indicates
that the earliest possible effective date of the ’888 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 ’888 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
Genetics plus at least 2–4 years of experience in the field.” Pet. 9–11 (citing Ex.
1016 ¶¶ 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 ’888 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
PGR2015-00003
Patent 8,660,888 B2

7
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
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,
PGR2015-00003
Patent 8,660,888 B2

8
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.”),
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, 9, and 16 recites “relative market value.” For
example, independent claim 16 recites “determining, by one or more processors,
PGR2015-00003
Patent 8,660,888 B2

9
relative market value and ranking of the genetic merits of the sale group responsive
to the plurality of genetic merit estimates and the plurality of economic weighting
factors.” Ex. 1001, 50:31–34. 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. 12–13 (citing Ex. 1001, 19:25–34; Ex. 1016 ¶ 28).
The ’888 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.
Ex. 1001, 19: 25–34. 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, 19:25–34).7 Petitioner appears to agree with this
construction. Pet. Reply 7–8 (citing Ex. 1001, 20:48–53; 21:19–23; 23:4–6;
24:44–46; 25:32–53).
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. 55–56. 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 ’888

7 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.”
PGR2015-00003
Patent 8,660,888 B2

10
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. 52–56. 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
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 including cattle that are fed and
harvested for beef production”
Each of independent claims 1, 9, and 16 recites “sale group including cattle
that are fed and harvested for beef production.” For example, independent claim
16 recites “[a] computer-implemented method to determine relative market value
PGR2015-00003
Patent 8,660,888 B2

11
of a sale group, the sale group including cattle that are fed and harvested for beef
production” and “determining, by one or more processors, relative market value
and ranking of the genetic merits of the sale group responsive to the plurality of
genetic merit estimates and the plurality of economic weighting factors.” Ex.
1001, 50:23–34. Petitioner proffers that “sale group” should be construed as
follows: “one or more animals.” Pet. 13 (citing Ex. 1001, 11:5–6, 34–35). In the
Decision on Institution, we construed “sale group including cattle that are fed and
harvested for beef production” as “at least bovine animals fed and harvested for
beef production.” Dec. 8–9 (citing Ex. 1001, 11:5–6, 11:34–35; Ex. 2001). We
clarified also that, “‘fed and harvested for beef production’ appears to be an
intended use that all cattle would meet, as any cattle would appear to be capable of
being ‘fed and harvested for beef production,’ no matter what purpose the cattle
are actually used for.” Dec. 9. Patent Owner makes several assertions concerning
this construction (PO Resp. 27–30), to which Petitioner replies (Pet. Reply 5–7).
As an initial matter, the term “sale group” appears in the claims of both the
’888 patent and ’557 patent, which is related to the ’888 patent and is the subject of
a related post grant review in PGR2015-00005. Petitioner asserts that “sale group”
should be construed consistently across both proceedings, in that in PGR2015-
00005, “sale group” was construed as “one or more animals,” whereas here, “sale
group” is construed as “at least bovine animals fed and harvested for beef
production.” Specifically, Petitioner asserts that the construction here should be
“at least one bovine animal[ ] fed and harvested for beef production,” i.e., such that
“sale group” can consist of a “single animal.” We disagree.
As an initial matter, we acknowledge that there are several factors weighing
in favor of Petitioner’s assertion that “sale group” can consist of a “single animal.”
For example, we acknowledge that the Specification provides an explicit definition
PGR2015-00003
Patent 8,660,888 B2

12
of “sale group” as follows: “[a]s used herein, a sale group is an animal or a
plurality of animals for which a relative market value is determined.” Ex. 1001,
11:5–6. This definition is confirmed throughout the rest of the paragraph within
which the explicit definition appears, and indeed expressly includes “a single
animal” within the explicit definition of “sale group.” Ex. 1001, 11:34–35 (“[i]n
certain embodiments, a sale group may comprise a single animal”). We
acknowledge further, as we must, that “sale group” in the ’888 patent should be
construed consistent with the use of the term in the ’557 patent. See NTP, Inc. v.
Research in Motion, Ltd., 418 F.3d 1282, 1293 (Fed. Cir. 2005) (when construing
claims in patents that derive from the same parent application and share common
terms, “we must interpret the claims consistently across all asserted patents”); see
also Belden Inc. v. Berk-Tek LLC, 610 F. App’x 997, 1000, 1006 (Fed. Cir. 2015)
(nonprecedential) (affirming Board decision where Board considered definitions in
parent, grandparent applications in construing claims). As Patent Owner correctly
points out, however, in the ’888 patent the claim term “sale group” is modified by
the plural claim term “cattle.” Certainly, the use of the term “cattle” is consistent
with the aforementioned definition of “sale group” set forth in the Specification, in
that “cattle” are clearly “an animal or a plurality of animals.” It is just that, here,
by modifying “sale group” using explicit claim language to include “cattle,” Patent
Owner is evincing an express intent to exclude single animals. Accordingly, we
are unpersuaded by Petitioner’s assertion that “sale group” as recited in
independent claims 1, 9, and 16 should include “single animals.”
Patent Owner asserts also that the phrase “fed and harvested for beef
production” should be given patentable weight. We agree, as the aforementioned
phrase is an express claim limitation. Patent Owner then asserts, however, that
construing “fed and harvested for beef production” as essentially applying to all
PGR2015-00003
Patent 8,660,888 B2

13
bovine animals, in that all bovine animals are capable of being “fed and harvested
for beef production,” is unreasonable because it would, as a practical matter, read
the limitation out of the claim. PO Resp. 29. In support of this contention, Patent
Owner advances the following analogy:
Interpreting the claim phrase “bovine animals fed and harvested
for beef production” to simply mean “bovine animals” would read a
fundamental element out of the claim and ignore a distinction that the
POSITA would have drawn. Phillips v. AWH Corp., 415 F.3d 1303,
1313 (Fed. Cir. 2005) (“The inquiry into how a [POSITA] understands
a claim term provides an objective baseline from which to begin claim
interpretation.”) It would re-define the claim to refer to any cattle. This
can be likened to a patent claim that recites “car keys.” One would
readily recognize that car keys refers to a particular type of key: keys
to lock or unlock a car. Reading out the word “car,” simply because, in
theory, all types of keys (e.g., house keys, bike lock keys, safe keys)
could be used for any purpose, including a car, would fundamentally
change the meaning of the claimed phrase.
PO Resp. 29. We disagree. In the context of Patent Owner’s example, the
appropriate analogy would not be “car keys,” but “keys for opening a lock.”
Certainly, “for opening a lock” expressly modifies “keys” and is given patentable
weight. As the purpose of a key is to open a lock, however, the fact that the
practical effect is that all keys meet “keys for opening a lock” does not indicate
that the construction is incorrect. Instead, while claim construction requires
following the express claim limitations to their full and logical conclusion, if that
conclusion is that certain claim limitations, even when given full effect in light of
the specification, do not materially limit the claim further, we are unpersuaded that
it is proper to artificially further limit the claim merely because additional words
are used.
Patent Owner asserts additionally that “cattle that are fed and harvested for
beef production” should be construed as referring to a particular type of cattle,
PGR2015-00003
Patent 8,660,888 B2

14
namely, “feeder cattle.” We disagree. Initially, and most importantly, the claim
limitation expressly recites “cattle that are fed and harvested for beef production,”
and not “feeder cattle.” Cf. CAE Screenplates, Inc. v. Heinrich Fiedler GmbH &
Co. KG, 224 F.3d 1308, 1317 (Fed. Cir. 2000) (“In the absence of any evidence to
the contrary, we must presume that the use of these different terms in the claims
connotes different meanings.”). Given this express reality, Patent Owner appears
to be asserting that one of ordinary skill would have understood “cattle that are fed
and harvested for beef production” as being synonymous and interchangeable with
“feeder cattle.” In support of this assertion, Patent Owner cites the Declaration of
Dr. Woodward (Ex. 2022), the Declaration of Dr. Golden (Ex. 2024), and Exs.
2031, 2032. Petitioner counters with the following:
All cattle born are ultimately destined to be harvested into “beef,”
regardless of what roles they may have also played in their lifetimes.
(Ex. 1019, ¶ 8.) Even if beef production is not the primary purpose for
animals at conception, it is a purpose for which they are all bred and
fed. (Id.) When pressed, Patentee’s own witnesses agree that all
“types” of cattle – “feeders” and [“]breeders” – are destined for
slaughter. (Ex. 1017, 50:10–25; 57:3–58:24; Ex. 1018, 51:4–53:6;
53:7–54:20; 55:5–56:10.)
Pet. Reply 7. After considering this evidence collectively in light of the
Specification, we are unpersuaded that “cattle that are fed and harvested for beef
production” should be construed as being synonymous and interchangeable with
“feeder cattle.”
Dr. Woodward asserts that “feeder cattle” is a term of art in the cattle
industry that means cattle fed and harvested for beef production. Ex. 2022 ¶¶ 20,
66; see also Ex. 2024 ¶ 24. For support, Dr. Woodward cites the following
portions of the ’888 patent: 1:39–40, 2:41–42, 13:16–19. We have reviewed those
citations, however, we are unable to discern how they support Patent Owner’s
position that “cattle that are fed and harvested for beef production” are
PGR2015-00003
Patent 8,660,888 B2

15
synonymous and interchangeable with “feeder cattle.” Indeed, in our own review
of the ’888 patent, our conclusion is that “feeder cattle” are a subset of, and not
synonymous with, “cattle that are fed and harvested for beef production.” There
are several factors that inform our conclusion.
First, broad statements to the present invention appear to almost exclusively
use the language “fed and harvested for beef production” (Ex. 1001, 2:41–42, 3:8–
9, 3:15–16, 11:40–43, 11:57–59, 27:48–49, 28:20–21), while the references to
“feeder” appears to be largely confined to discussions of the exemplary
embodiments concerning “feeder calves,” not “feeder cattle,” at Figures 3B–3F
and 6 at columns 21–26 of the ’888 patent. Indeed, as noted in columns 21–26,
while some formulas for calculating “Relative market value of the sale group”
include a “Feeder Calf Value” variable, others do not. Ex. 2031 discloses that
“calves” are an age-based subset of “cattle,”8 and so it would appear that “feeder”
also denotes a subset of “cattle.” These findings weigh against “cattle that are fed
and harvested for beef production” being considered synonymous and
interchangeable with “feeder cattle.”
The other major reference to “feeder cattle” is at column 32, lines 36–65
concerning the “Reputation Feeder Cattle (RFC)” certification program. These
citations, however, also weigh against Patent Owner’s position, as “feeder cattle”
is not used in conjunction with descriptions of other certification programs, such as
“Non-Hormone Treated Cattle (NHTC)” program, “Never Ever 3 (NE3)” program,
and “Grass Fed” program, again indicating that “feeder cattle” are a subset of, and
not synonymous with, “cattle that are fed and harvested for beef production.” To

8 “Feeder cattle” is defined as “[s]teers or cows mature enough to be placed in a
feedlot where they will be fattened prior to slaughter. Feeder calves are less than 1
year old; feeder yearlings are between 1 and 2 years old.” Ex. 2031.
PGR2015-00003
Patent 8,660,888 B2

16
be sure, there may be some portions of the ’888 patent that support Patent Owner’s
position, however, those portions are outweighed by the above-referenced portions
of the ’888 patent, especially in light of the fact that the claim limitation expressly
recites “cattle that are fed and harvested for beef production,” and not “feeder
cattle.”
Furthermore, we credit paragraph 8 of Dr. Spangler’s Second Declaration,
which agrees with our position, and even refers correctly to the fact that the ’888
patent refers mostly to “feeder calves,” and not “feeder cattle.” We also credit the
cross-examination testimony of Dr. Woodward and Dr. Golden that the line
between “seedstock cattle” and “feeder cattle” is not always clear, again,
supporting our determination that “feeder cattle” are a subset of, and not
synonymous with, “cattle that are fed and harvested for beef production” (“[i]f the
seedstock producer sold the calf and he went into a feedlot because he was a culled
calf, the feedlot operator wouldn’t distinguish him probably as anything other than
a feeder calf” Ex. 1018, 52:15–18), and that at least some seedstock cattle ends up
as hamburger meat. Ex. 1017, 58:11–21; Ex. 1018, 54:19–20.
Patent Owner asserts that there is some ambiguity in the above construction
as to whether or not the claim term “sale” in “sale group” is taken adequately into
consideration. 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 the surrounding claim
language, is “for which a relative market value is determined.” The ’888 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: “at least bovine animals
PGR2015-00003
Patent 8,660,888 B2

17
fed and harvested for beef production, for which a relative market value is
determined.”
After considering all evidence and assertions concerning this claim
construction, we construe “sale group including cattle that are fed and harvested
for beef production,” in the context of surrounding claim language, as “at least
bovine animals fed and harvested for beef production, for which a relative market
value is determined.”
3. “genetic merit scorecard”
Each of independent claims 1, 9, and 16 recite “genetic merit scorecard.”
Petitioner asserts that “genetic merit scorecard” should be construed as “visual
display of genetic merit information.” Pet. 16–17 (citing Ex. 1001, Fig. 6). Patent
Owner does not dispute this construction. 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.”
B. Claims 1–4 and 6–20 as Obvious over Wang and the Angus System
Petitioner contends that claims 1–4 and 6–20 are obvious over Wang and the
Angus system. Pet. 55–77 (citing Exs. 1001, 1004, 1011–1014, 1016). Patent
Owner disagrees. PO Resp. 31–64 (citing Exs. 1001, 1004, 1011–1014, 1016,
2014, 2022, 2024, 2033, 2034). Petitioner replies. Pet. Reply 13–25 (citing Exs.
1001, 1004, 1013, 1014, 1016–1022, 2005, 2036, 2037). Claims 1, 9, and 16 are
independent.
PGR2015-00003
Patent 8,660,888 B2

18
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);9 Declaration
of Dr. Dan Moser (“Moser Decl.”; Ex. 1012); Printout from Angus’s website, 2014
(“Angus 1”; Ex. 1013); and 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. 31–39. 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

9 In the intervening period between Ms. Kurtz’s Declaration and deposition.
Ms. Kurtz changed her name to Ms. Gottswiller. PO Resp. 32; 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.
PGR2015-00003
Patent 8,660,888 B2

19
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
PGR2015-00003
Patent 8,660,888 B2

20
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
’888 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 ’888 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 possible priority date. Ex. 2033, 57:7–58:6
(Ms. Kurtz testified, concerning Exhibit 1014, that “[i]t was actually printed last
PGR2015-00003
Patent 8,660,888 B2

21
year is when I 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 every effective 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 every 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. Analysis
Each of independent claims 1, 9, and 16 recites “online genetic merit
scorecard.” In the relevant portions of the claim charts, Petitioner cites portions of
PGR2015-00003
Patent 8,660,888 B2

22
Wang and the Angus system as corresponding to the recited “online genetic merit
scorecard.” Pet. 56–58, 61–65, 68–71; see also Pet. Reply 20–21. As set forth
above, we determined that Petitioner has not met its burden of showing that the
Angus system is prior art. Accordingly, Petitioner must rely on Wang alone for the
“online genetic merit scorecard.”
Aside from the Angus system, Petitioner relies on paragraphs 11, 14, and 72
of Wang (Ex. 1004) for disclosing an “online genetic merit scorecard.” Pet. 57–58.
We have considered paragraphs 11, 14, and 72 of Wang, and find that while they
do provide disclosure that corresponds properly to “genetic merit scorecard,”
construed above as “visual display of genetic merit information,” Petitioner has not
pointed to any disclosure or provided any analysis, unrelated to the Angus system,
concerning the “online” aspect of “online genetic merit scorecard.”
To be sure, at a high level, the fact that the “genetic merit scorecard” may be
“online” seems like a relatively minor distinction, especially given that the ’888
patent has an earliest possible priority date of April 13, 2013. Furthermore, it is
unclear how much weight should be given to “online,” in that it is possible that any
computer output, in a sense, can be considered capable of being placed “online.”
Additionally, Wang does provide some disclosure that a computer is connected to
databases, and that the computer is used to “generate the output rankings and
individual animal estimated breeding values” (Ex. 1004 ¶ 11, 14), which could,
perhaps, be enough to be considered “online.” Petitioner, however, has not
advanced any of the above assertions, nor provided evidence in support thereof.
See 35 U.S.C. § 326(e) (“In a post-grant review instituted under this chapter, the
petitioner shall have the burden of proving a proposition of unpatentability by a
preponderance of the evidence.”) Absent such assertions or evidence, we
determine that Petitioner has not met its burden of showing, by a preponderance of
PGR2015-00003
Patent 8,660,888 B2

23
the evidence, that the “online” aspect of “online genetic merit scorecard,” as
recited in each of independent claims 1, 9, and 16, is obvious in view of Wang
alone.10
3. Conclusion
For the foregoing reasons, we are unpersuaded that Petitioner has shown, by
a preponderance of the evidence, that claims 1–4 and 6–20 are obvious in view of
Wang and the Angus system.
C. Dependent Claim 5 as Obvious over Wang, the Angus System,
and Goddard
Petitioner contends that dependent claim 5 is obvious over Wang, the Angus
system, and Goddard. Pet. 77–79 (citing Exs. 1004, 1015, 1016). Patent Owner
disagrees. PO Resp. 65 (citing Exs. 1015). Specifically, Patent Owner asserts that
Goddard is cited by Petitioner for reasons unrelated to the aforementioned
deficiencies of independent claim 1, from which claim 5 depends, and, thus, cannot
be used to remedy that deficiency. We agree. For the foregoing reasons, we are
unpersuaded that Petitioner has shown, by a preponderance of the evidence, that
claim 5 is obvious in view of Wang, the Angus system, and Goddard.
D. 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. 30–39 (citing Exs. 1001, 1006, 1008, 1016). Patent
Owner disagrees. PO Resp. 65–75 (citing Exs. 1001, 2002, 2003, 2018, 2022,

10 Indeed, we note additionally that this analysis appears to be consistent with the
prosecution history of the ’888 patent, in which the Examiner noted, with respect
to rejection of independent claim 1, that “Wang fail[s] to disclose displaying a
genetic merit scorecard and to display to a user thereof one or more online genetic
merit scorecards.” Ex. 1003, 6.
PGR2015-00003
Patent 8,660,888 B2

24
2034). Petitioner replies. Pet. Reply 9–13 (citing Exs. 1001). Claims 1, 9, and 16
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
PGR2015-00003
Patent 8,660,888 B2

25
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, 9, and 16 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. 31–34. Specifically, Petitioner asserts the following:
Peeling back the flowery language of claims 1, 9, and 16, 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
PGR2015-00003
Patent 8,660,888 B2

26
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 Dec., ¶ 54.)
For centuries, farmers have judged the value of animals based on
their physical traits and parentage. (Id. at ¶ 55.) Many decades ago,
farmers 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. 31–32. Petitioner asserts further that none of dependent claims 2–8, 10–15,
and 17–20 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, 2:4-44.) 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, ¶ 71.)
The Board stated in its Institution Decision that, based on the record
available to it at the time, the ’888 Patent was directed to the mere
abstract idea of “determining an animal’s relative economic value
based on its genetic and physical traits.” (Paper 19 at 14.) The claimed
invention does not preempt anyone from applying this alleged abstract
idea. (Ex. 2022, ¶ 71.) 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, ¶ 71.)
PGR2015-00003
Patent 8,660,888 B2

27
PO Resp. 65–66 (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. 69–71. 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 groups
include “cattle fed and harvested for beef production,” “genetic merit interface,”
determining “relative market value,” or outputting an “online 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
PGR2015-00003
Patent 8,660,888 B2

28
changes in underlying data. Presumably the underlying data 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 an
“online 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 ’888 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.
PGR2015-00003
Patent 8,660,888 B2

29
Ex. 1001, 1:21–27. The “Description of Related Art” section that follows delves
heavily into problems associated with determining 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, 1:46–48. 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 ’888 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. 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, 1:29–
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. 1016 ¶ 55. Patent Owner
challenges the fact that the aforementioned fundamental concept is any of
“‘fundamental economic practice . . . long prevalent in our system of commerce,’”
PGR2015-00003
Patent 8,660,888 B2

30
an “‘a fundamentally necessary and decades old principle,’” or a “‘building block
of human ingenuity’” (PO Resp. 67–71), however, Patent Owner’s assertions are
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. 34–39.
Patent Owner disagrees for several reasons. PO Resp. 71–75. 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 16 recites the following
computer hardware: “computer-implemented method”; “one or more processors”;
and “electronic interfaces”; “online.” 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
PGR2015-00003
Patent 8,660,888 B2

31
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 computer 41 or system 401.” Ex. 1001, 29:16–18 (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. See id. 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, 31:42–48 (emphasis added). The story is no different for
“database” (Ex. 1001, 36:7–17) and “genetic merit interface” (Ex. 1001, 30:38–
49). 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 claim construction of “sale group including cattle that are
fed and harvested for beef production,” 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:
PGR2015-00003
Patent 8,660,888 B2

32
(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
compare to other sale groups (e.g., in terms of certain genetic
attributes).
PO Resp. 72–73. 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. 73–74. 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.11

11 “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.
PGR2015-00003
Patent 8,660,888 B2

33
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 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.
E. Patent Owner’s Motion to Amend
Patent Owner requests, should independent claims 9 and 16 be determined to
be unpatentable, cancellation of claims 9–20, and entry of substitute claims 21–28.
PO Amend. 1–25 (citing Exs. 1001, 1004, 2002, 2003, 2018, 2022, 2024, 2034,
PGR2015-00003
Patent 8,660,888 B2

34
2045). Petitioner opposes the request. Pet. Resp. 1–25 (citing Exs. 1001, 1017–
1019, 1021, 1022, 1025, 1027, 1028). Patent Owner replies. PO Reply 1–12
(citing Exs. 1001, 1019, 2022, 2024, 2049–2054).
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 9 and 16 were determined to be unpatentable,
namely, 35 U.S.C. § 101; 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 26 meet the
requirements of reciting statutory subject matter under 35 U.S.C. § 101.
PO Amend. 10–15, 19–21; PO Reply 6–9. Specifically, Patent Owner asserts that
insofar as there was any ambiguity that independent claims 9 and 16 recite
statutory subject matter under either prong of Alice, substitute independent claims
21 and 26 remedy those ambiguities. After considering all arguments and
PGR2015-00003
Patent 8,660,888 B2

35
evidence, we are unpersuaded that Patent Owner has met its burden concerning this
issue.
Specifically, with regard to substitute independent claim 26, Patent Owner
makes a myriad of amendments relative to independent claim 16 to both (1) shift
the fundamental concept such that it “addresses an Internet-centric problem
necessarily rooted in computer technology,” and (2) recite additional limitations
that amount to “significantly more” because they are directed to unconventional
steps that confine the purportedly abstract idea to a specific, useful, application.
PO Amend. 20–21. We disagree that Patent Owner has met its burden on either
account.
Concerning the “abstract idea” prong of Alice, we are unpersuaded that the
fundamental concept underlying substitute independent claim 26 should be altered
from “determining an animal’s relative economic value based on its genetic and
physical traits.” Patent Owner’s primary assertion in this regard is the addition of
the “broker module,” with the implication that facilitating a sale via this module
makes a computer a “necessary” part of the fundamental concept. We disagree.
Specifically, the added limitation in question reads as follows: “one of the
genetic merit interfaces including a broker module to facilitate a purchase of the
sale group over the communications network by a buyer at the remote user
computer in response to receiving the genetic merit scorecard.” When we strike
out the computer-related terms, however, we are left with the following
paraphrase: “facilitating a purchase of a sale group by a buyer responsive to
receiving genetic information.” 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
PGR2015-00003
Patent 8,660,888 B2

36
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
the purpose for making such a valuation is to make a sale, i.e., “facilitating a
purchase of a sale group by a buyer responsive to receiving genetic information.”
Accordingly, the paraphrase informs, and, thus, we are unpersuaded that there is a
need to alter, the fundamental concept articulated above. The same can be said for
the addition of other asserted differences, such as the specific types of information
received; they further inform, and do not alter, the fundamental concept of
“determining an animal’s relative economic value based on its genetic and physical
traits.”
Concerning the “significantly more” prong of Alice, we are unpersuaded that
any of the additional recitations of technology are unconventional. For example,
going back to the broker module, it recites being directed to “facilitate a purchase
of the sale group over the communications network by a buyer at the remote user
computer in response to receiving the genetic merit scorecard.” Of course, this
requires programming, but the added claim limitation is non-specific as to how any
of the “facilitating” and “in response to” 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 26, for substitute independent claim 21. They are unpersuasive
for the same reasons. Specifically, we are unpersuaded that any of the claim
amendments relative to independent claim 9, such as “feeder cattle,” “bulls,”
“dams,” and “national market average,” warrant altering the proffered fundamental
PGR2015-00003
Patent 8,660,888 B2

37
concept of “determining an animal’s relative economic value based on its genetic
and physical traits.” While “feeder cattle,” “bulls,” “dams,” and “national market
average,” 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
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, 604 Fed.
Appx. 930 (Fed. Cir. 2015). For example, “feeder cattle,” “bulls,” and “dams” are
all animals, and “national market average” 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 42–49 (PTAB June 14, 2016) (Paper
52) (analysis of substitute claim 21).
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. 1–6. 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 21–28 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
PGR2015-00003
Patent 8,660,888 B2

38
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 26, requires an express construction because while the ’888
patent may literally recite “environmental conditions” (Ex. 1001, 12:58–63), the
subsequent discussion in the ’888 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
’888 patent recites expressly “environmental conditions,” and while the subsequent
discussion in the ’888 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.
Furthermore, substitute independent claim 26 is proposed as a substitute for
independent claim 16. Independent claim 16 recites “the online genetic merit
scorecard including the relative market value and one or more rankings of genetic
merits of the sale group being displayed on the one or more genetic merit
PGR2015-00003
Patent 8,660,888 B2

39
interfaces.” Emphases added. This requirement of displaying the online genetic
merit scorecard is not recited in substitute independent claim 26. 35 U.S.C.
§ 326(d)(3) reads “[a]n amendment under this subsection may not enlarge the
scope of the claims of the patent or introduce new matter.” While we acknowledge
that, in certain cases, removal of some claim language and addition of other claim
language may, in the aggregate, result in a narrower claim, the natural inference is
that removal of claim language is broadening. In re Clement, 131 F.3d 1464, 1468
(Fed. Cir. 1997) (“For example, a reissue claim that deletes a limitation or element
from the patent claims is broader in that limitation’s aspect.”). Thus, it was
incumbent on Patent Owner to explain the justification for the removal of the claim
language in light of 35 U.S.C. § 326(d)(3), which was not done here.
4. Conclusion
For the foregoing reasons, we conclude that Patent Owner has not met its
burden of showing that substitute claims 21–28 are patentable.
F. Patent Owner’s Motion to Exclude
Patent Owner seeks to exclude (1) Exhibits 1013 and 1014, and (2) Exhibits
1022, 1026, 1027, and 1028. 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 1022, 1026, 1027, and 1028, 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.
PGR2015-00003
Patent 8,660,888 B2

40
III. CONCLUSION
Petitioner has demonstrated, by a preponderance of the evidence, that claims
1–20 of the ’888 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 ’888 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.

PGR2015-00003
Patent 8,660,888 B2

41
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