CFPH, LLC

Patent Trials and Appeals Board

Feb 13, 2020

14028751 - (D) (P.T.A.B. Feb. 13, 2020)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/028,751 09/17/2013 Howard W. Lutnick 10-2328CIP 3880
63710 7590 02/13/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
ANDERSON, MICHAEL W
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
02/13/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
lkorovich@cantor.com
patentdocketing@cantor.com
phowe@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte HOWARD W. LUTNICK, MARK MILLER, KEVIN FOLEY,
BRIAN GRAY, AND ANDREW FISHKIND
__________

Appeal 2019-002073
Application 14/028,751
Technology Center 3600
__________

Before DONALD E. ADAMS, FRANCISCO C. PRATS, and
JOHN E. SCHNEIDER, Administrative Patent Judges.

PRATS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. 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 states that “[t]he real party in interest of the present
application is CFPH, LLC, a limited liability company organized and
existing under the laws of the State of Delaware, U.S.A., and having a place
of business at 110 East 59th Street, New York, NY 10022. Appeal Br. 3
(entered October 2, 2018).
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STATEMENT OF THE CASE
The Specification explains that, “[m]arket liquidity, a measure [of]
securities[’] ability to be bought and / or sold readily through a market, is
recognized as a factor that may affect prices at which securities are traded.”
Spec. 16.
For example, the Specification explains, it may be relatively difficult
to sell “an illiquid security because potential buyers may fear they will be
unable to resell the security after purchase. Such fear may artificially lower
the price of the sale of the security from the true market value of the security
to help alleviate the fears of such potential buyers.” Id.
The Specification discloses that non-public or secret information
regarding orders, bids, or offers for securities typically contribute to market
liquidity “only when they are made public to the market so other traders in
the market may act against those orders. Such secret orders may be referred
to as ‘dark pools’ or ‘dark books’ of liquidity because they remain unseen by
such markets.” Id. at 17.
According to the Specification, it is recognized that providing access
to the secret order-related information in dark pools of liquidity “may
improve the liquidity of a market and thereby allow more trades to occur
through a market and / or allow trades to occur at a price closer to or at a fair
market value.” Id.
Appellant’s claim 1 is representative of the subject matter on appeal,
and reads as follows:
1. A method comprising:
[(a)] receiving, by an alternative trading system
comprising at least one computer in electronic
communication with a plurality of participant systems
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over an electronic communications network, from an
order submitting computer in electronic communication
with the alternative trading system over an electronic
communications network, a formula defining a set of
orders for a side of trading in a financial instrument,
in which the formula specifies a mathematical
relationship between a price value and size to define the
set of orders,
in which each of the plurality of participant
systems comprises at least one computer, and
in which information relating to the formula is
caused to be displayed at a graphical user interface of an
electronic display device of the order submitting
computer;
[(b)] transmitting, by the alternative trading system, an
indication of the formula and a side of the trade to a
plurality of participant systems that each access
respective order management systems of respective buy
side participants,
in which the order management systems, taken
together, form a dark pool of liquidity that is accessible
to the alternative trading system, and
in which each order management system
comprises at least one computer processor and at least
one database that stores order information;
[(c)] receiving, by a participant system of the plurality of
participant systems from the alternative trading system,
the indication of the formula and the side of the trade;
[(d)] in response to receiving the indication of the
formula and the side of the trade, determining, by the
participant system, that an order for an opposite side of
trading is pending in an order management system of a
buy side participant that is accessible by the participant
system;
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[(e)] in response to determining that the order for the
opposite side of the trade is pending, determining, by the
participant system, a quantity defined by the order;
[(f)] in response to determining the quantity, determining,
by the participant system, a price from the formula by
inputting the quantity into the formula;
[(g)] in response to determining the price, querying, by
the participant system, a trading entity computer of a
trading entity for an acceptance of a trade with the price
and quantity,
in which the act of querying the trading entity
computer for an acceptance of a trade comprises
transmitting an electronic message to the trading entity
computer over the electronic communications network,
and
in which the act of querying the trading entity
computer for an acceptance comprises causing
information about the queried acceptance to be displayed
at a graphical user interface of an electronic display
device of the trading entity computer;
[h)] receiving, by the participant system, an indication of
the acceptance, the acceptance having been received via
an input device electronically coupled to the graphical
user interface of the electronic display device of the
trading entity computer;
[(i)] in response to receiving the indication of the
acceptance, transmitting, by the participant system, the
indication of the acceptance to the alternative trading
system via the electronic communications network;
[(j)] receiving, by the alternative trading system, the
indication of the acceptance over the electronic
communications network; and
in response to receiving the indication of the acceptance:
[(k)] facilitating, by the alternative trading system,
execution of the trade;
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[(l)] notifying, by the alternative trading system,
the order submitting computer of the trade, in which
indicia of the trade is caused to be displayed at the
graphical user interface of the electronic display device;
and
[(m)] determining, by the alternative trading
system, that the set of orders is fulfilled based on the
trade being executed.
Appeal Br. 25–26 (letter added to each step performed in claimed process).
The sole rejection before us for review is the Examiner’s rejection of
claims 1–20, under 35 U.S.C. § 101, as being directed to subject matter not
eligible for patenting. Final Act. 8–12 (entered April 18, 2018).
35 U.S.C. §101—
ELIGIBILITY FOR PATENTING
The Examiner’s Rejection
The Examiner determined that representative claim 1 is directed to “a
series of steps for performing trade[s of] securities . . . which is a
fundamental economic practice and mathematical equation, as well as a
method of organizing human activities, and thus an abstract idea.”
Final Act. 8 (emphasis removed). The Examiner determined, in addition,
that “the courts have recognized similar claims to be abstract ideas . . . .”
Final Act. 8–9 (collecting cases).
The Examiner found that the “only additional limitations in the claims
that relate to computerization [are] a hardware trading system and
participant system.” Final Act. 9 (emphasis removed). The Examiner
determined, however, that
[t]he additional limitations when taken individually and in
combination are not sufficient to amount to significantly more
than the judicial exception because the claims do not provide
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improvements to another technology or technical field,
improvements to the functioning of the computer itself, and do
not provide meaningful limitations beyond general linking the
use of an abstract idea to a particular technological
environment.
Final Act. 9.
The Examiner determined that the computer elements recited in
representative claim 1 do not add meaningful limitations to the abstract idea
because they “require no more than a generic computer to perform generic
computer functions that are well-understood, routine, and conventional
activities previously known to the industry.” Final Act. 9.
In particular, the Examiner reasoned, the “additional limitations are
merely performing repetitive calculations; receiving, processing, and storing
data; receiving or transmitting data over a network all of which have been
held by the courts to be well understood, routine, and conventional computer
functions.” Final Act. 9 (emphasis removed).
Principles of Law
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 has long interpreted 35 U.S.C. § 101 to include implicit
exceptions, however: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216
(2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
Collaborative Services v. Prometheus Laboratories., Inc., 566 U.S. 66
(2012) and Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–77). In
accordance with that framework, we first determine what concept the claim
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is “directed to.” See Alice, 573 U.S. at 219 (“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.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski v. Kappos, 561 U.S.
593, 611 (2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584,
594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63,
69 (1972)).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted).
Early in 2019, the PTO published revised guidance on the application
of § 101. USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance,
84 Fed. Reg. 50 (January 7, 2019) (“Memorandum” or “2019 Office
Guidance” or “Office Guidance”).2 In light of comments received in
response to the Office Guidance, the PTO subsequently issued the October
2019 Patent Eligibility Guidance Update (“October 2019 Update”).3
Following the Office Guidance and the October 2019 Update, under
Revised Step 2A, we first look to whether the claim recites the following:

2 Available at https://www.govinfo.gov/content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf.
3 https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_
update.pdf.
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(1) any judicial exceptions, including certain groupings of
abstract ideas (i.e., mathematical concepts, certain methods of
organizing human activity such as a fundamental economic
practice, or mental processes); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look, under Step 2B of the
Office Guidance, to whether the claim:
(3) adds specific limitations beyond the judicial exception that
are not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Memorandum.
Analysis
Office Guidance—Revised Step 2A, Prong 1
Appellant’s claim 1 is illustrative for the purposes of our analysis.
Applying Revised Step 2A, Prong 1, of the 2019 Office Guidance, we agree
with the Examiner that Appellant’s claim 1 recites abstract ideas in a number
of instances.
Claim 1 recites “[a] method,” i.e., a process. Appeal Br. 25.
Although the preamble of claim 1 does not recite the purpose or objective of
the claimed process, the process involves receiving orders for a “financial
instrument” (see id.) and ultimately results in a trade of the financial
instrument. See id. at 26 (claim 1 reciting “facilitating . . . execution of the
trade”).
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Appellant’s Specification explains that a “financial instrument should
be understood to include an instrument that evinces ownership of debt or
equity, and/or any derivative thereof, including equities, stocks, fixed
income instruments, bonds, debentures, certificates of interest or deposit,
warrants, options, futures, forwards, swaps, or generally any security.”
Spec. 5.
Appellant’s Specification explains that “[f]acilitating execution of a
trade should be understood to include performing any actions that help to
bring about the execution of a trade. The actions may include, for example,
actually executing the trade . . . .” Spec. 6.
Because Appellant’s claim 1 recites a process in which a security is
ordered and then traded, claim 1 recites a fundamental economic practice, as
well as a process of commercial and legal interaction, all of which are
considered methods of organizing human activity. See Office Guidance (84
Fed. Reg. at 52 (abstract ideas include “(b) Certain methods of organizing
human activity—fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal interactions
(including agreements in the form of contracts; legal obligations;
advertising, marketing or sales activities or behaviors; business relations”).
Because claim 1 recites undertakings that are methods of organizing human
activity, claim 1 therefore recites an abstract idea. See id.
Office Guidance—Revised Step 2A, Prong 2
Having determined that Appellant’s claim 1 recites an abstract idea
under Revised Step 2A, Prong 1, of the 2019 Office Guidance, we turn to
Revised Step 2A, Prong 2, of the Office Guidance to determine whether
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claim 1 recites additional elements that integrate the judicial exceptions into
a practical application. See Office Guidance (84 Fed. Reg. at 54–55).
We find that Appellant’s claim 1 does not recite additional elements
sufficient to integrate the judicial exception into a practical application.
Specifically, the various steps recited in Appellant’s claim 1 all relate to the
manner in which the trade of the financial instrument, i.e., the abstract idea,
is performed.
The first two steps in claim 1’s process are performed by “an
alternative trading system.” Appeal Br. 25. The Specification explains that
an “alternative trading system may include a non-exchange trading venue.
A non-exchange trading venue may include, for example, a trading venue in
which only secondary trading of financial instruments occurs.” Spec. 53.
Claim 1’s alternative trading system is composed of at least one computer in
electronic communication with a plurality of “participant systems” over an
electronic communications network, with each of the participant systems
being composed of at least one computer. Appeal Br. 25.
In the first two steps in claim 1’s process, the alternative trading
system (a) receives, from an order-submitting computer, a formula that
defines a set of orders for a side of trading in a financial instrument, in
which the formula specifies “a mathematical relationship between a price
value and size to define the set of orders” and (b) transmits an indication of
the formula and side of the trade to participant systems that access order
management systems of buy side participants in the trading system. See
Appeal Br. 25.
Thus, the first two steps in claim 1’s process, (a) receiving a formula
specifying the desired price and quantity of an order for a financial
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instrument, and (b) transmitting of that formula to participants in the
exchange system, are merely steps that implement the ultimate result of the
claimed process—execution of the trade of the financial instrument. We are
not persuaded, therefore, that the first two steps of claim 1’s process
integrate the claimed abstract idea into a practical application.
Indeed, by expressly reciting that the claimed formula specifies a
“mathematical relationship” between price and order quantity (Appeal Br.
25), claim 1 recites an additional abstract idea. See Office Guidance (84
Fed. Reg. at 52 (abstract ideas include “(a) Mathematical concepts—
mathematical relationships, mathematical formulas or equations,
mathematical calculations”) (emphasis added)).
Moreover, the fact that claim 1 requires the alternative trading system,
the participant system, and the order management systems, to include
computers, does not persuade us that claim 1’s process integrates the
abstract idea (the trade-executing process) into a practical application. See
Office Guidance (84 Fed. Reg. at 55 (example in which a judicial exception
is not integrated into a practical application includes situation in which claim
“merely includes instructions to implement an abstract idea on a computer,
or merely uses a computer as a tool to perform an abstract idea”).
We acknowledge claim 1’s recitation that the order management
systems collectively form a dark pool of liquidity that is accessible to the
alternative trading system. See Appeal Br. 25. As noted above, a dark pool
of liquidity is essentially non-public or secret information regarding orders,
bids, or offers for financial instruments. See Spec. 17. Because the dark
pool of liquidity recited in claim 1, therefore, is merely information about
the potential orders, that is, merely involves an observation, evaluation,
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judgment, or opinion about the orders, the dark pool of liquidity is therefore
an abstract idea as well. See Office Guidance (84 Fed. Reg. at 52 (abstract
ideas include “(c) Mental processes—concepts performed in the human
mind (including an observation, evaluation, judgment, opinion”) (citations
omitted).
We acknowledge, as Appellant contends, that claim 1 recites that the
information relating to the order formula is displayed at a graphical user
interface on an electronic display device of the order submitting computer.
See Appeal Br. 12–15 (reproducing ¶¶ 624, 291 of Appellant’s published
application); 4 see also id. at 15–18 (arguing that Examiner’s rejection is not
in accordance with Office’s eligibility guidelines because rejection ignores
claimed recitation of displaying formula on an electronic display device of
the order submitting computer thereby improving computer function).
We acknowledge that reproduced ¶ 624 of Appellant’s published
application indicates that traders may use computer interfaces. Appellant,
however, does not explain specifically how merely displaying information
on an electronic display device improves the function of any of the
computers recited in claim 1. Nor does Appellant identify any persuasive
evidence suggesting that displaying information on an electronic display
device improves the function of any of the computers recited in claim 1.
As to reproduced ¶ 291 of Appellant’s published application, the
improvement alleged by Appellant relates to the situation in which it is

4 The disclosure at ¶ 291 of the published application reproduced by
Appellant appears at page 55 of the originally filed Specification. The
disclosure at ¶ 624 of the published application reproduced by Appellant
appears at page 130 of the originally filed Specification.

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determined that a matching order is available, except that a smaller quantity
than specified in the order is available. See Appeal Br. 13 (“Determination
may include determining if a matching order with a smaller quantity is
available.” (emphasis removed); see also id. at 14 (“Appellants’
specification describes additional technical improvements: ‘determining the
availability of orders for only a portion of the quantity may result in fewer
instances of an offer being accepted, but a trade not being executed’.”
(emphasis removed)).
Appellant, however, fails to explain specifically where, how, or why
the process of claim 1 includes a step of determining the availability of a
matching order for a quantity smaller than specified in the formula, such that
claim 1 actually embodies the alleged improvement. Nor does Appellant
identify any specific evidence supporting its assertion that computer function
itself, as opposed to the abstract idea of trading a financial instrument, is
actually improved by linking the abstract idea to the particular environment
of an alternative trading system. See Office Guidance (84 Fed. Reg. at 55
(example in which a judicial exception is not integrated into a practical
application includes situation in which “an additional element does no more
than generally link the use of a judicial exception to a particular
technological environment or field of use.”).
Accordingly, for the reasons discussed, we are not persuaded that the
first two steps in claim 1’s process, steps (a) and (b), integrate the claimed
abstract idea into a practical application. The next steps in claim 1’s process
are all implemented by a system that participates in the alternative trading
system—a “participant system.” Appeal Br. 25. Similar to steps (a) and (b),
we determine that the steps implemented by the participant system are
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merely steps that implement the abstract idea of executing a trade of a
financial instrument, and that a number of the steps are mental processes.
Specifically, in steps (c)–(f), the participant system (c) receives the
formula and side of the prospective trade, (d) determines that an order for an
opposite side of trading is pending in an order management system of a buy
side participant that is accessible by the participant system, (e) determines a
quantity defined by the order based on the formula, and (f) determines a
price for the order by inputting the quantity into the formula. See Appeal Br.
25–26. But for the recitation of computers in claim 1, all of these steps can
be performed in the human mind, and therefore are mental processes, which
constitute abstract ideas. See Office Guidance (84 Fed. Reg. at 52).
Accordingly, we are not persuaded that steps (c)–(f) of Appellant’s claim 1
integrate the claimed process of trading a financial instrument into a
practical application.
In claim 1’s steps (g)–(i), the participant system (g) queries a
computer of a trading entity for acceptance of a trade with the price and
quantity, (h) receives an indication of acceptance of the trade, and (i) upon
receiving acceptance, transmits an indication of the acceptance to the
alternative trading system via the electronic communications network.
Appeal Br. 26.
Thus, rather than integrating the claimed process of executing a trade
of a financial instrument into a practical application, claim 1’s steps (g)–(i)
are merely computer-implemented steps that are performed to accomplish
the claimed abstract idea (the trade execution process), which as discussed
above is a fundamental economic practice, as well as a process of
commercial and legal interaction. Because steps (g)–(i) are merely
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instructions to implement the claimed abstract idea on a computer, and
merely use a computer as a tool to perform the abstract idea, we are not
persuaded that steps (g)–(i) integrate the claimed abstract idea into a
practical application. See Office Guidance (84 Fed. Reg. at 55 (judicial
exception is not integrated into practical application when claim merely
instructs implementation of abstract idea on a computer or merely uses a
computer as a tool to perform the abstract idea)).
We acknowledge that in querying step (g), and receiving step (h),
claim 1 recites that information about the queried acceptance is displayed on
an electronic display device of the trading entity computer. Appeal Br. 26.
Similar to the discussion above, however, we are not persuaded that merely
displaying information about the price and quantity of the potential trade
improves the function of the computer. We are not persuaded, therefore,
that claim 1’s recitation of displaying the order query information on an
electronic display is sufficient to integrate the claimed abstract idea into a
practical application.
The final steps in claim 1’s process are implemented by the alternative
trading system. Specifically, the alternative trading system (j) receives, from
the participant system, an indication that the trade has been accepted by the
trading entity, and in response thereto (k) facilitates execution of the trade
(i.e., executes the trade), (l) notifies the order-submitting computer of the
trade execution, and (m) determines that the set of orders is fulfilled, based
on execution of the trade. Appeal Br. 26.
Again, similar to a number of the steps discussed above, rather than
integrating the claimed process of executing a trade of a financial instrument
into a practical application, claim 1’s steps (j)–(m) are merely computer-
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implemented steps that are performed to accomplish the claimed abstract
idea (trade execution process), which as discussed above is a fundamental
economic practice, as well as a process of commercial and legal interaction.
Because steps (j)–(m) are instructions to implement the claimed abstract idea
on a computer, and merely use a computer as a tool to perform the abstract
idea, we are not persuaded that steps (j)–(m) integrate the claimed abstract
idea into a practical application. See Office Guidance (84 Fed. Reg. at 55.
We note, moreover, that notwithstanding the computer recitations in claim 1,
step (j) (receiving an indication of the trade acceptance), and step (m)
(determining that the order is fulfilled), can be performed in the human
mind, and therefore are also mental processes which constitute abstract
ideas.
In sum, for the reasons discussed, evaluating the claimed elements
individually and in combination, we are not persuaded that claim 1
integrates any of the recited judicial exceptions into a practical application
under Revised Step 2A, Prong 2, of the 2019 Office Guidance.
Office Guidance—Step 2B
For the reasons discussed above, we are persuaded that Appellant’s
representative claim 1 recites judicial exceptions (abstract ideas in the form
of methods of organizing human activity, mathematical concepts, and mental
processes) under Revised Step 2A, Prong 1, of the 2019 Office Guidance,
and does not integrate those judicial exceptions into a practical application
under Revised Step 2A, Prong 2. Accordingly, we turn to Step 2B of the
Office Guidance to determine whether (a) claim 1 recites specific limitations
beyond the judicial exceptions that are not well-understood, routine, or
conventional in the field, or (b) whether claim 1 simply appends well-
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understood, routine, conventional activities previously known to the
industry, specified at a high level of generality, to the judicial exception.
See Office Guidance (84 Fed. Reg. at 56).
In the present case, as discussed above, when the steps of
representative claim 1 are viewed as an ordered combination, the overall
claimed process, as a whole, recites a method of executing a trade of a
financial instrument, which is a fundamental economic practice, as well as a
process of commercial and legal interaction. In other words, viewed as a
whole, and as an ordered combination of steps and elements, claim 1 recites
no specific additional elements beyond the features involved in the recited
method of organizing human activity, which is an abstract idea. We are not
persuaded, therefore, that when claim 1 is viewed as a whole, claim 1
includes specific limitations beyond the judicial exception that are not well-
understood, routine, or conventional in the field. As explained in the 2019
Office Guidance, it is the “additional elements recited in the claims” beyond
the judicial exceptions in the claim that must provide significantly more than
the recited judicial exception. See Office Guidance (84 Fed. Reg. at 56)
(emphasis added).
Viewing the steps of claim 1’s process individually, we come to the
same conclusion. As noted above, steps (a), (c)–(f), (j), and (m) all involve
mental processes, as well as the mathematical relationship in the formula
recited in step (a). Beyond those abstract ideas, we acknowledge that claim
1 requires essentially all of the active entities to include generically recited
computers, and also recites displaying information pertinent to the executed
trade on an electronic display device associated with the computers. See
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Appeal Br. 25–26. We also acknowledge that steps (b), (g)–(i), (k), and (l)
may involve the electronic transfer of information. See id.
We acknowledge, but are unpersuaded by Appellant’s contention that
the Examiner failed to advance evidence suggesting that the claimed
computer-implemented steps and elements are well understood, routine, and
convention in the art. See Appeal Br. 19–20 (citing Berkheimer v. HP Inc.,
881 F.3d 1360 (Fed. Cir. 2018)).
As the Examiner points out (see Ans. 4–8), Appellant’s Specification
provides substantial evidence that the computer-implemented steps and
information transmission recited in Appellant’s claim 1 involve well-
understood, routine, conventional activities previously known to the
industry. See Spec. 10 (“It will be readily apparent to one of ordinary skill
in the art that the various processes described herein may be implemented
by, e.g., appropriately programmed general purpose computers . . . .”); id. at
11 (data transmission and encryption may be performed “in any of a variety
of ways well known in the art”); id. at 14 (“Computers, processors,
computing devices and like products are structures that can perform a wide
variety of functions. . . . It is well known to one of ordinary skill in the art
that a specified function may be implemented via different algorithms . . .
.”).
Accordingly, for the reasons discussed, we find that the
preponderance of the evidence supports the Examiner’s determination that,
in reciting the computer-implemented steps of receiving and transmitting
information, representative claim 1 simply appends well-understood,
routine, conventional activities previously known to the industry, specified
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at a high level of generality, to the judicial exceptions recited in the claim.

Eligibility for Patenting—Conclusion
As discussed above, we are persuaded that Appellant’s representative
claim 1 recites judicial exceptions (abstract ideas in the form of methods of
organizing human activity, mathematical concepts, and mental processes)
under Revised Step 2A, Prong 1, of the 2019 Office Guidance, and does not
integrate those judicial exceptions into a practical application under Revised
Step 2A, Prong 2. As also discussed above, we are persuaded that, to the
extent claim 1 recites additional elements beyond the judicial exceptions
recited in the claim, claim 1 simply appends well-understood, routine,
conventional activities previously known to the industry, specified at a high
level of generality, to the judicial exceptions. Accordingly, applying the
principles set forth in the 2019 Office Guidance and October 2019 Update,
we find that the preponderance of the evidence supports the Examiner’s
determination that Appellant’s claim 1 is directed to subject matter that is
ineligible for patenting.
We acknowledge, but are unpersuaded by, Appellant’s contention that
the process recited in claim 1 does not preempt any and all uses of achieving
the result recited in the claims. See Appeal Br. 21. Our reviewing court has
explained that, “[w]hile preemption may signal patent ineligible subject
matter, the absence of complete preemption does not demonstrate patent
eligibility. . . . Where a patent’s claims are deemed only to disclose patent
ineligible subject matter under the Mayo framework . . . preemption
concerns are fully addressed and made moot.” Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
Appeal 2019-002073
Application 14/028,751

20
In the present case, as discussed above, under the Mayo framework as
implemented by the 2019 Office Guidance and October 2019 Update, we are
persuaded that the preponderance of the evidence supports the Examiner’s
determination that the process recited in Appellant’s claim 1 is directed to
subject matter that is ineligible for patenting. Accordingly, the fact that
Appellant’s claim 1 might not preempt any and all ways of executing a trade
in an alternative trading system does not demonstrate patent eligibility. See
Ariosa, 788 F.3d at 1379.
We acknowledge, but are unpersuaded by Appellant’s contention that
the absence of a rejection based on prior art demonstrates that claim 1
“recite[s] rules that improve the technological process by customizable
filtering in a way the computer could not previously perform.” Appeal Br.
22. Appellant does not point to any persuasive evidence supporting the
assertion that the claims embody a process that could not be performed
previously by computers. To the contrary, as noted above, Appellant’s
Specification states expressly that general purpose computers can perform
the claimed processes. See Spec. 10.
Moreover, although the absence of a prior art rejection might indicate
that the abstract idea is free of the art, that fact does not persuade us of error
in the Examiner’s determination that claim 1’s process is ineligible for
patenting. See In re BRCA1- and BRCA2-Based Hereditary Cancer Test
Patent Litigation, 774 F.3d 755, 759 (Fed. Cir. 2014) (Even if Appellant
“made a ‘[g]roundbreaking, innovative, or even brilliant discovery,’ . . . that
is not enough” to establish patent eligibility.) (citing Association for
Molecular Pathology v. Myriad, 569 U.S. 576, 591 (2013)).
Appeal 2019-002073
Application 14/028,751

21
In sum, for the reasons discussed, Appellant does not persuade us that
the Examiner erred in determining that Appellant’s claim 1 is directed to
subject matter that is ineligible for patenting. We, therefore, affirm the
Examiner’s rejection of claim 1 as being ineligible for patenting. As to
claims 2–20, Appellant advances the same arguments discussed above in
relation to claim 1. Appeal Br. 23. For the reasons discussed above in
relation to claim 1, we do not find those arguments persuasive, and therefore
also affirm the Examiner’s rejection of claims 2–20.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1– 20 101 Eligibility 1– 20

TIME PERIOD
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