BGC Partners, Inc.

Patent Trials and Appeals Board

Jan 31, 2022

2021002760 (P.T.A.B. Jan. 31, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 16/238,442 01/02/2019 Joseph C. Noviello 04-6205-C6 7146 63710 7590 01/31/2022 CANTOR FITZGERALD, L.P. INNOVATION DIVISION 110 EAST 59TH STREET NEW YORK, NY 10022 EXAMINER PURI, VENAY ART UNIT PAPER NUMBER 3624 NOTIFICATION DATE DELIVERY MODE 01/31/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): Caitlyn.kelly@chareiter.com gabriella.zisa@chareiter.com patentdocketing@cantor.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JOSEPH C. NOVIELLO, MICHAEL SWEETING, and HOWARD W. LUTNICK ____________ Appeal 2021-002760 Application 16/238,442 Technology Center 3600 ____________ Before JOSEPH A. FISCHETTI, BIBHU R. MOHANTY, and BRUCE T. WIEDER, Administrative Patent Judges. WIEDER, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks review under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 2-15. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as BGC Partners, Inc. (Appeal Br. 3.) Appeal 2021-002760 Application 16/238,442 2 CLAIMED SUBJECT MATTER Appellant’s “invention relates in general to market trading and, more particularly, to a system and method for using alert messages for outlying trading orders (such as buy and sell orders).” (Spec. 1.) Claims 2 and 9 are the independent claims on appeal. Claim 2 is illustrative. It recites: 2. An apparatus comprising: a memory; a network interface; a display device; at least one processor to: receive trading orders, via the network interface, each trading order having a price; render, on the display device, the trading orders on an order stack; sort the trading orders on the order stack in accordance with a sort criteria such that an order at the top of the order stack is the first order; in response to removing a given order from the order stack, compare a price of the first order to a value; in response to determining that the price of the first order does not differ from the value by more than a threshold, permit interaction with the first order; in response to determining that the price of the first order does differ from the value by more than the threshold, classify the first order as an outlying order, promote a new order to the top of the order stack, and render, via the display device, at least one space between the new order and the outlying order; and in response to detecting interaction with the outlying order, render an alert on the display device indicating that the outlying order may have an erroneous price and render on the display device an opportunity to change the erroneous price. Appeal 2021-002760 Application 16/238,442 3 REJECTION Claims 2-15 are rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. ANALYSIS “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U.S.C. § 101. Section 101, however, “contains an important implicit exception: Laws of nature, natural phenomena, and abstract ideas are not patentable.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589 (2013)). Alice applies a two-step framework, earlier set out in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts.” Alice, 573 U.S. at 217. Under the two-step framework, it must first be determined if “the claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the claims are determined to be directed to a patent-ineligible concept, e.g., an abstract idea, then the second step of the framework is applied to determine if “the elements of the claim . . . contain[] an ‘ “inventive concept” ’ sufficient to ‘transform’ the claimed abstract idea into a patent-eligible application.” Id. at 221 (citing Mayo, 566 U.S. at 72-73, 79). Appeal 2021-002760 Application 16/238,442 4 With regard to step one of the Alice framework, we apply a “directed to” two-prong test to: 1) evaluate whether the claim recites a judicial exception, and 2) if the claim recites a judicial exception, evaluate whether the claim “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” See USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”). The Examiner determines that claim 2 is “directed to performing actions based on determining tha[t] the price of a first order does or does not differ from a value by more than a threshold” and that this “covers certain methods of organizing human activity.” (Final Action 7 (brackets and emphasis omitted).) Thus, the Examiner determines that the “claim falls within the ‘Certain Methods of Organizing Human Activity’ grouping of abstract ideas.” (Id. (emphasis omitted).) Appellant argues that “the claimed subject matter improves the functioning of the computer by providing a type of filter for outlying orders. By preventing access to the outlying order, users are protected from ‘mistakenly attempt[ing] to trade with such an outlying order.’” (Appeal Br. 9 (brackets in original) (citing Spec. 2).) Under step one of the Alice framework, we “look at the ‘focus of the claimed advance over the prior art’ to determine if the claim’s ‘character as a whole’ is directed to excluded subject matter.” Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)). Appeal 2021-002760 Application 16/238,442 5 The “directed to” inquiry . . . cannot simply ask whether the claims involve a patent-ineligible concept, because essentially every routinely patent-eligible claim involving physical products and actions involves a law of nature and/or natural phenomenon . . . . Rather, the “directed to” inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether “their character as a whole is directed to excluded subject matter.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015). Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In other words, the first step of the Alice framework “asks whether the focus of the claims is on the specific asserted improvement in [the relevant technology] or, instead, on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” Id. at 1335-36; see also 2019 Guidance at 54-55. The Specification provides evidence as to what the claimed invention is directed. In this case, the Specification discloses that the “invention relates in general to market trading and, more particularly, to a system and method for using alert messages for outlying trading orders (such as buy and sell orders).” (Spec. 1.) Claim 2 provides further evidence. Claim 2 recites “a memory; a network interface; a display device; at least one processor to: receive trading orders,” “render, on the display device, the trading orders on an order stack,” “sort the trading orders,” “in response to removing a given order from the order stack, compare a price of the first order to a value,” “in response to determining that the price of the first order does not differ from the value by more than a threshold, permit interaction with the first order,” “in response to determining that the price of the first order does differ from the value by more than the threshold, classify the first order as an outlying order, promote a new order to the top of the order stack, and render, via the Appeal 2021-002760 Application 16/238,442 6 display device, at least one space between the new order and the outlying order,” and “in response to detecting interaction with the outlying order, render an alert on the display device . . . and . . . an opportunity to change the erroneous price.” The claim limitations recite receiving data, displaying data (orders on an order stack, an alert, price change opportunity), analyzing/manipulating data (sort orders, compare a price to a value, classify an order, reorder stack/promote an order), and granting access (permit interaction). Receiving data, displaying data, analyzing/manipulating data, and granting access to data have been determined to be directed to an abstract idea. See, e.g., PersonalWeb Techs. LLC v. Google LLC, 8 F.4th 1310, 1317 (Fed. Cir. 2021) (controlling access to data items determined to be directed to an abstract idea), Univ. of Fla. Research Found., Inc. v. General Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir. 2019) (claims “directed to the abstract idea of ‘collecting, analyzing, manipulating, and displaying data’”), FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093-94 (Fed. Cir. 2016) (determining “that the ‘realm of abstract ideas’ includes ‘collecting information, including when limited to particular content’” as well as analyzing and presenting information), Content Extraction and Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (treating as an abstract idea “1) collecting data, 2) recognizing certain data within the collected data set, and 3) storing that recognized data”), Bridge and Post, Inc. v. Verizon Commc’ns, Inc., 778 F. App’x 882, 886-87 (Fed. Cir. 2019) (obtaining information, analyzing the information, and presenting customized information based on the analyzed information determined to be directed to an abstract idea). Appeal 2021-002760 Application 16/238,442 7 The inquiry as to whether the claims are directed to an abstract idea “often turns on whether the claims focus on ‘the specific asserted improvement in computer capabilities ... or, instead, on a process that qualifies as an “abstract idea” for which computers are invoked merely as a tool.’” Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting Enfish, LLC, 822 F.3d at 1335-36). In this case, the asserted improvement is to the information provided and how it is displayed. The generically recited memory, network interface, display device, and processor are invoked merely as tools performing the generic computer functions of receiving, displaying, analyzing/manipulating, and granting access to data. The receiving step is simply a data gathering step. The analyzing/manipulating steps merely recite data analysis and manipulation, a basic computer function. The displaying steps describe the generic computer function of outputting data to a display device, in this case to a generically recited “display device.” The memory is recited as an element of the apparatus but without any recitation of its relation to any other element of the apparatus. Claim 2 does not recite “a particular way of programming or designing the software . . . , but instead merely claim[s] the resulting system[].” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1241 (Fed. Cir. 2016). In short, claim 2 merely recites functional results to be achieved by any means. It does not improve the operation of the memory, network interface, display device, and processor themselves. Specifically, claim 2 does not recite how the processor, e.g., receives trading orders, sorts the trading orders, compares a price to a value, permits interaction with the order, classifies an order, or promotes an order in the Appeal 2021-002760 Application 16/238,442 8 order stack. Claim 2 does not recite how the processor renders on the display device orders on an order stack, renders on the display device the recited order spacing, renders on the display device an alert, or renders on the display device an opportunity to change a price. Claim 2 does not recite how the network interface communicates. Nor does claim 2 recites who or what “remov[es] a given order from the order stack,” “determin[es] that the price of the first order does not [or does] differ from the value by more than a threshold,” or “detect[s] interaction with the outlying order.” “Indeed, the claim language here provides only a result-oriented solution, with insufficient detail for how a computer accomplishes it.” Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017). Moreover, the Specification makes clear that the recited memory, network interface, display device, and processor, were well known. (See, e.g., Spec. 4, 10.) “As many cases make clear, even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir. 2018). The “character of [the] information simply invokes a separate category of abstract ideas.” Id. Moreover, “[a] claim does not cease to be abstract for section 101 purposes simply because the claim confines the abstract idea to a particular technological environment in order to effectuate a real-world benefit.” In re Mohapatra, 842 F. App’x 635, 638 (Fed. Cir. 2021). As discussed, the Examiner identifies claim 2 as reciting “performing actions based on determining tha[t] the price of a first order does or does not Appeal 2021-002760 Application 16/238,442 9 differ from a value by more than a threshold” and that this “covers certain methods of organizing human activity.” (Final Action 7 (brackets and emphasis omitted).) We agree that receiving, displaying, sorting, and analyzing/manipulating trading orders recite certain methods of organizing human activity, e.g., managing transactions which, in this case, includes marketing or sales activities. (See Final Action 7; see also 2019 Guidance at 52.) Moreover, we do not find any indication in the Specification that the claimed invention effects a transformation or reduction of a particular article to a different state or thing. Nor do we find anything of record that attributes an improvement in computer technology or functionality to the claimed invention or that otherwise indicates that the claimed invention “appl[ies], rel[ies] on, or use[s] the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” (See 2019 Guidance at 54-55.) Regardless, Appellant argues that “the claimed subject matter improves the functioning of the computer by providing a type of filter for outlying orders.” (Appeal Br. 9.) We do not find this argument persuasive. As discussed above, claim 2 does not recite how the processor receives orders, sorts orders, compares a price to a value, permits interaction with the order, classifies an order, promotes an order in the order stack, or renders the recited elements on the display device. Claim 2 is “focused on providing information to [the user] . . . , not on improving computers or technology.” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (hereinafter “IBG”). “Like Electric Power, the purported Appeal 2021-002760 Application 16/238,442 10 advance ‘is a process of gathering and analyzing information of a specified content, then displaying the results, and not any particular assertedly inventive technology for performing those functions.’” Id. at 1385 (quoting Elec. Power Grp., 830 F.3d at 1354). “The advance is only at the abstract level of computerization because [the claim] fails to set forth specific techniques for processing the data, instead reciting known computer techniques for automation of known processes.” Enco Sys., Inc. v. DaVincia, LLC, 845 F. App’x 953, 957 (Fed. Cir. 2021) (citing Univ. of Fla. Research Found., Inc., 916 F.3d at 1368). Regardless, Appellant seeks to analogize claim 2 to the claims in the non-precedential decision Trading Technologies International, Inc. v. CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017) (hereinafter “CQG”). (Appeal Br. 10.) Specifically, Appellant argues that “[a]s with Trading Technologies, the claims of the present case are also directed to graphical user interface devices and the accuracy of trading.” (Id.) Specifically, Appellant argues that “[t]he claims recite an alert that is displayed for a user in response to detecting an outlying order.” (Id.) We do not find this argument persuasive. Claim 1 in CQG recites, in part, displaying the bid and ask display regions in relation to fixed price levels positioned along the common static price axis such that when the inside market changes, the price levels along the common static price axis do not move and at least one of the first and second indicators moves in the bid or ask display regions relative to the common static price axis. CQG, 675 F. App’x at 1003. The Federal Circuit agreed with the district court’s determination that “[t]he claims require a specific, structured graphical user interface paired with a prescribed functionality directly Appeal 2021-002760 Application 16/238,442 11 related to the graphical user interface’s structure that is addressed to and resolves a specifically identified problem in the prior state of the art.” Id. at 1004. The Federal Circuit agreed with the district court that “the challenged patents solve problems of prior graphical user interface devices . . . in the context of computerized trading[] relating to speed, accuracy and usability.” Id. (internal quotations omitted). “The [district] court found that these patents are directed to improvements in existing graphical user interface devices . . . .” Id.; see also Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc., 880 F.3d 1356, 1362-63 (Fed. Cir. 2018) (The court determined that “[t]he asserted claims in this case are directed to an improved user interface for computing devices,” that the claim “limitations disclose a specific manner of displaying a limited set of information to the user, rather than using conventional user interface methods,” and that “[t]he disclosed invention improves the efficiency of using the electronic device.”). More analogous is IBG. In that case, the claim required “‘displaying’ a plurality of bid and offer indicators along a ‘scaled axis of prices,’ ‘receiving market information,’ displaying that information along the axis, and ‘displaying’ information pertaining to a user’s order.” IBG, 921 F.3d at 1092. The Federal Circuit determined that a claim recitation of “sending an order by ‘selecting’ and ‘moving’ an order icon” did not change the “determination that the claims are directed to an abstract idea.” Id. Indeed, like claim 2 here, the claims in IBG merely “recite a purportedly new arrangement of generic information that assists traders in processing information more quickly.” Id. at 1093. Moreover, “relying on a computer to perform routine tasks more quickly or more accurately is insufficient to Appeal 2021-002760 Application 16/238,442 12 render a claim patent eligible.” OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015). Here, Appellant does not persuasively argue why, e.g., the claim recitation of “an alert that is displayed for a user in response to detecting an outlying order” (Appeal Br. 10), solves a problem of prior graphical user interface devices or improves a graphical user interface device. Nor does Appellant point to anything in the Specification disclosing how the claimed invention solves a problem relating to, or improves upon, a graphical user interface device. In sum, “the claimed invention merely improves the abstract concept . . . using a computer only as a tool. This is not what the Supreme Court meant by improving the functioning of the computer itself nor is it consistent with [the Federal Circuit’s] precedent applying this concept.” Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1363 (Fed. Cir. 2020). Therefore, under prong one of the two-prong test in the 2019 Guidance, claim 2 recites an abstract idea, i.e., certain methods of organizing human activity; and, under prong two, additional elements in claim 2 do not “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” (See 2019 Guidance at 54.) As such, under step one of the Alice framework, claim 2 is directed to an abstract idea, and we move to step two. Step two of the Alice framework has been described “as a search for an ‘ “inventive concept” ’ -i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly Appeal 2021-002760 Application 16/238,442 13 more than a patent upon the [ineligible concept] itself.’” Alice, 573 U.S. at 217-18 (alteration in original) (quoting Mayo, 566 U.S. at 72-73).2 Taking the claim elements separately, the functions performed in claim 2 by the generically recited memory, network interface, display device, and processor to receive data, display data, analyze/manipulate data, and grant access to data are purely conventional. Receiving data, displaying data, analyzing/manipulating data, and granting access to data are well- understood, routine, and conventional functions previously known to the industry. See Elec. Power Grp., 830 F.3d at 1356 (The claims “do not include any requirement for performing the claimed functions of gathering, analyzing, and displaying in real time by use of anything but entirely conventional, generic technology. The claims therefore do not state an arguably inventive concept . . . .”); see also Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016) (determining receiving, processing, and sending data to be well-known, generic computer- implemented steps), Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (determining claims requiring “arranging, storing, retrieving, sorting, eliminating, determining” to “involve the normal, basic functions of a computer” and to be “conventional, routine, and well- known”), In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming.”). 2 We note “that a claimed invention’s use of the ineligible concept to which it is directed cannot supply the inventive concept that renders the invention ‘significantly more’ than that ineligible concept.” BSG Tech LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). Appeal 2021-002760 Application 16/238,442 14 Considered as an ordered combination, the generically recited memory, network interface, display device, and processor add nothing that is not already present when the limitations are considered separately. For example, claim 2 does not purport to improve the functioning of the memory, network interface, display device, and processor themselves. Nor does it effect an improvement in any other technology or technical field. Instead, claim 2 amounts to nothing significantly more than an instruction to apply the abstract idea using generic computer components performing routine computer functions. That is not enough to transform an abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225-26; see also Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of receiving, analyzing, modifying, generating, displaying, and transmitting data recited an abstraction). Nonetheless, Appellant seeks to analogize claim 2 to the claims in BASCOM Global Internet Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). (Appeal Br. 10.) Specifically, Appellant argues that “[a]s with Bascom, the ordered combination of the claim elements of the present case provide [sic] significantly more than the abstract idea of ‘organizing human behavior’ and ‘mathematical relationships.’” (Id.) We do not find this argument persuasive. In BASCOM, the court determined that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces.” BASCOM, 827 F.3d at 1350. Specifically, “[t]he inventive concept described and claimed in the ’606 patent is the installation of a filtering tool at a specific location, remote from the end-users, with customizable filtering features specific to each end user.” Id. at 1350. The Appeal 2021-002760 Application 16/238,442 15 Federal Circuit determined that this “particular arrangement of elements is a technical improvement over prior art ways of filtering.” Id. Here, however, claim 2 does not recite any particular configuration of the memory, network interface, display device, and processor. Appellant does not persuasively argue why the claimed apparatus is analogous to a filtering tool installed at a specific location, remote from the end-users, and with customizable features specific to each end user. We are not persuaded that the Examiner erred in rejecting claim 2. Claims 3-15 are not separately argued and fall with claim 2. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION The Examiner’s rejection of claims 2-15 under 35 U.S.C. § 101 is affirmed. Specifically: Claims Rejected 35 U.S.C. § Reference/Basis Affirmed Reversed 2-15 101 Eligibility 2-15 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED