CFPH, LLC

Patent Trials and Appeals Board

Jun 16, 2021

2021000338 (P.T.A.B. Jun. 16, 2021)

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.
15/616,575 06/07/2017 Rich Jaycobs 16-2471 6004
63710 7590 06/16/2021
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
SHAH, BHAVIN D
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
06/16/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
lkorovich@cantor.com
mcatarino@cgolaw.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICH JAYCOBS

_____________

Appeal 2021-000338
Application 15/616,575
Technology Center 3600
____________

Before ST. JOHN COURTENAY III, JOHN A. EVANS, and
MARC S. HOFF, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1–17. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a) (2020). According to Appellant, the real party in interest
is CFPH, LLC, a corporation organized and existing under the laws of
Delaware. See Appeal Br. 3.
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STATEMENT OF THE CASE
Invention
Embodiments of the disclosed and claimed invention on appeal relate
to “weather prediction and, more specifically, to binary options based on
weather prediction.” Spec. ¶ 2.

Illustrative Claim 1
1. An apparatus comprising

a memory;

a display device;

a network interface to communicate with at least one remote
device; at least one processor to:

receive from a remote device a plurality of longitude and
latitude coordinate pairs;

generate in the memory an association between a given
longitude and latitude pair and each zip code within a certain
radius from the given longitude and latitude pair;

render on the display device a graphical user interface
comprising a map and a circle around the given longitude
latitude pair on the map, a radius of the circle corresponding to
the certain radius;

render, on the display device, data representing a binary
option based on whether a storm will make landfall within the
certain radius;

receive data indicative of a request to purchase the binary
option;
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receive from a remote device a landfall location of the
storm; and

identify whether the landfall location corresponds to a zip
code associated with the given longitude latitude pair in the
memory.
Appeal Br. 13 (Claims App.).

Prior Art Evidence Relied Upon by the Examiner
Name Reference Date
Kleist et al. (“Kleist”) US 7,181,346 B1 Feb. 20, 2007
Horowitz US 2008/0133429 A1 Jun. 5, 2008

Table of Rejections
Rejection Claims Rejected 35 U.S.C. § Reference(s)/Basis
A 1–17 101 Eligibility
B 1–17 103 Kleist, Horowitz

ISSUES AND ANALYSIS
We have considered all of Appellant’s arguments and any evidence
presented. Throughout this opinion, we give the claim limitations the
broadest reasonable interpretation (BRI) consistent with the Specification.
See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). We highlight and
address specific findings and arguments for emphasis in our analysis below.

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Rejection A of Claims 1–17 under 35 U.S.C. § 101
USPTO 35 U.S.C. § 101 MPEP Guidance
In January and October of 2019, the U.S. Patent and Trademark
Office (“USPTO”) published revised guidance on the application of
35 U.S.C. § 101.2 We note the USPTO current eligibility guidance is found
in the Ninth Edition, Revision 10.2019 (revised June 2020) of the Manual of
Patent Examination Procedure (“MPEP”), and particularly within Sections
2103 through 2106.07(c). Accordingly, all references to the MPEP
throughout this Decision are to the Ninth Edition, Revision 10.2019 (Last
Revised June 2020), unless otherwise indicated.
Under MPEP § 2106, we first look to whether the claim recites:
(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) (“Step 2A, Prong One”); and
(2) additional elements that integrate the judicial exception into a
practical application (“Step 2A, Prong Two”).3

2 See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg.
50 (Jan. 7, 2019) (“2019 Revised Guidance”) and USPTO, October 2019
Update: Subject Matter Eligibility (the “October 2019 Update”). “All
USPTO personnel are, as a matter of internal agency management, expected
to follow the guidance.” 84 Fed. Reg. at 51; October 2019 Update at 1.

3 “Examiners evaluate integration into a practical application by:
(1) identifying whether there are any additional elements recited in the claim
beyond the judicial exception(s); and (2) evaluating those additional
elements individually and in combination to determine whether they
integrate the exception into a practical application.” MPEP § 2106.04(d)(II).
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MPEP § 2106, Step 2A, Prong One
The Judicial Exception
Under MPEP § 2106.04(a), the enumerated groupings of abstract
ideas are defined as follows:
(1) Mathematical concepts – mathematical relationships,
mathematical formulas or equations, mathematical
calculations (see MPEP § 2106.04(a)(2), subsection I);
(2) 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); managing personal
behavior or relationships or interactions between people
(including social activities, teaching, and following rules or
instructions) (see MPEP § 2106.04(a)(2), subsection II); and
(3) Mental processes – concepts performed in the human mind
(including an observation, evaluation, judgment, opinion)
(see MPEP § 2106.04(a)(2), subsection III).
In the Final Action, under Step 2A, Prong One, the Examiner
concludes that several claim 1 limitations describe an abstract idea of
“trading binary options and may correspond to Certain Methods of
Organizing Human Activity (fundamental economic principles or practices
(including hedging, mitigating risk)).” Final Act. 3 (emphases added).
We agree with the Examiner to the extent that the claim 1 limitations
which involve the purchase of a “binary option” fall into the category of
certain methods of organizing human activity, including fundamental
economic principles or practices, such as hedging and mitigating risk. See
MPEP § 2106.04(a)(2), subsection II). Cf. Spec. ¶ 12 describing the claimed
“apparatus and method for trading binary options based on storm landfall
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predictions” in the context of matching “sellers of such derivatives with
buyers.”
We additionally determine that at least the “generate” and “identify”
functions of apparatus claim 1 could be performed alternatively as a mental
process, as defined under MPEP § 2106.04(a)(2), subsection III. 4 We note
similar limitations of commensurate scope are recited in remaining
independent claims 9 and 17. Therefore, we agree with the Examiner that all
claims 1–17 recite a judicial exception.5
MPEP § 2106.04(a) guides that “[i]f the identified limitation(s) falls
within at least one of the groupings of abstract ideas, it is reasonable to
conclude that the claim recites an abstract idea in Step 2A Prong One.” In
such case, “[t]he claim then requires further analysis in Step 2A Prong Two,
to determine whether any additional elements in the claim integrate the

4 If a method can be performed by human thought alone, or by a human
using pen and paper, it is merely an abstract idea and is not patent eligible
under § 101. See CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d
1366, 1372–73 (Fed. Cir. 2011); “That purely mental processes can be
unpatentable, even when performed by a computer, was precisely the
holding of the Supreme Court in Gottschalk v. Benson.” CyberSource, 654
F.3d at 1375. See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1146–47 (Fed. Cir. 2016). Moreover, “[u]sing a computer to
accelerate an ineligible mental process does not make that process patent-
eligible.” Bancorp Services, L.L.C. v. Sun Life Assur. Co. of Canada (U.S.),
687 F.3d 1266, 1279 (Fed. Cir. 2012); see also OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (“relying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.”).

5 We note that each dependent claim includes all the limitations of the
claims from which it depends. See 35 U.S.C. § 112(d).
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abstract idea into a practical application, see MPEP § 2106.04(d).” MPEP
§ 2106.04(a).
Because we conclude that all claims 1–17 recite an abstract idea, as
identified above, under Step 2A, Prong One, we proceed to Step 2A, Prong
Two, in which we apply the guidance set forth under MPEP § 2106.04(d).

Step 2A, Prong Two Under MPEP § 2106.04(d),
Integration of the Judicial Exception into a Practical Application
Limitations that are indicative of integration into a practical
application under MPEP § 2106.04(d) include:
1. Improvements to the functioning of a computer, or to any
other technology or technical field — see MPEP
§ 2106.05(a);
2. Applying the judicial exception with, or by use of, a
particular machine — see MPEP § 2106.05(b);
3. Effecting a transformation or reduction of a particular article
to a different state or thing — see MPEP § 2106.05(c); and
4. Applying or using the judicial exception in some other
meaningful way beyond generally linking the use of the
judicial exception to a particular technological environment,
such that the claim as a whole is more than a drafting effort
designed to monopolize the exception — see MPEP
§ 2106.05(e).

In contrast, limitations that are not indicative of integration into a
practical application include:
1. Adding the words “apply it” (or an equivalent) with the
judicial exception, or merely including instructions to
implement an abstract idea on a computer, or merely uses a
computer as a tool to perform an abstract idea — see MPEP
§ 2106.05(f);
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2. Adding insignificant extra-solution activity to the judicial
exception — see MPEP § 2106.05(g); and
3. Generally linking the use of the judicial exception to a
particular technological environment or field of use — see
MPEP § 2106.05(h).
See MPEP § 2106.04(d)(I) (Describing Step 2A, Prong Two).

Additional Limitations
Applying the USPTO guidance under MPEP § 2106.04(d), we
consider whether there are additional elements set forth in the claims that
integrate the judicial exception into a practical application.
The Examiner finds that the judicial exception is not integrated into a
practical application. See Final Act. 4. The Examiner explains:
The additional elements, e.g., a processor, a remote device, a
memory, a graphica1 user interface and a display device are
recited at a high level of generality. This generic limitation is no
more than mere instructions to apply the exception using a
generic computer component.
Final Act. 4. (emphasis added).
However, Appellant contends that “the present claims are similar to
those of Core Wireless Licensing S.A.R.L. v. LG Electronics MobileComm
U.S.A., Inc. [880 F.3d 1356] (Fed. Cir. 2018) (“Core Wireless”).” Appeal
Br. 9.
In support, Appellant contends:
As with the patents upheld in CoreWireless, Appellant's claimed
subject matter is also drawn to improved user interfaces which
provide advantages over prior art systems and improves the
efficiency of electronic devices. As the Federal Circuit in
CoreWireless has explicitly held that an improved graphical user
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interface is patent eligible, Appellant requests that the Examiner
similarly find that the presently claimed features, which provide
user interfaces that improve computer efficiency, are also patent-
eligible.
Appeal Br. 9 (emphasis added).
The Examiner disagrees with Appellant, and further explains the basis
for the rejection:
the improvements discussed here are simply to enhance the way
the user trades binary options which means that the
improvements argued are simply directed to the abstract idea
itself and do not result in any computer functionality or
technical/technology improvement (unlike CoreWireless),
CoreWireless had certain features such as an improved graphical
user interface which made it patent eligible. The claimed
invention is very different in scope from CoreWireless and does
not provide the same type of improvement in computer
functionality.
Ans. 6 (emphasis added).

We refer for additional guidance to the Federal Circuit’s own
summary of the user interface that was considered to be an improvement in
small screen computing devices in Core Wireless:
And in Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc.,
we held patent eligible claims directed to an improved user
interface that enabled users to more quickly access stored data
and programs in small-screen electronics. 880 F.3d 1356, 1359–
63 (Fed. Cir. 2018). We determined that the claimed invention
in Core Wireless “improve[d] the efficiency of using the
electronic device by bringing together a limited list of common
functions and commonly accessed stored data, which can be
accessed directly from the main menu.” Id. at 1363. We
therefore held that “the claims [we]re directed to an improvement
in the functioning of computers, particularly those with small
screens.” Id.
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Uniloc USA, Inc. v. LG Electronics USA, Inc., 957 F.3d 1303, 1307 (Fed. Cir.
2020) (emphasis added).
We turn to Appellant’s Specification for context: “Figures 3-7
illustrate examples of interfaces that may be used in some examples. Such
interfaces may be used to enable trading of hurricane landfall binary options
through a platform. Such interfaces may include, but are not limited to, web
pages, desktop applications, or mobile apps.” Spec. ¶ 35.
Although Appellant’s improved graphical user interface is not limited
to small screens, as was the case in Core Wireless (880 F.3d at 1359–63), we
nevertheless determine that the claimed “association between a given
longitude and latitude pair and each zip code within a certain radius from
the given longitude and latitude pair” in combination with the claimed
feature that “identif[ies] whether the landfall location corresponds to a zip
code associated with the given longitude latitude pair” provides a
meaningful improvement with respect to the claimed rendered “graphical
user interface comprising a map and a circle around the given longitude
latitude pair on the map, [and] a radius of the circle representing a binary
option based on whether a storm will make landfall within the certain
radius.” Claim 1. See MPEP § 2106.05(a) and (e). Remaining independent
claims 9 and 17 recite similar limitations of commensurate scope. See also
Appellant’s Figures 3–7, depicting exemplary improved graphical user
interfaces in accordance with Appellant’s claimed invention.

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Thus, similar to the Federal Circuit’s analysis in Core Wireless (880
F.3d at 1359–63), we determine that Appellant’s claimed “graphical user
interface” (independent claims 1, 9, 17) improves “the efficiency of using
the electronic device by bringing together a limited list of common functions
and commonly accessed stored data, which can be accessed directly from the
main menu.” Id. at 1363.
Accordingly, for essentially the same reasons argued by Appellant in
the Appeal Brief (8–9), we determine that each of independent claims 1, 9,
and 17 recites an improved graphical user interface that improves the
functionality of a computer or other technology or technical field. See
MPEP § 2106.05(a).
In light of the foregoing, we conclude that each of Appellant’s claims
1–17, considered as a whole, integrates the abstract idea into a practical
application. Therefore, we are constrained on this record to reverse the
Examiner’s Rejection A under 35 U.S.C. § 101 of all claims 1–17 on appeal.

Rejection B of claims 1–17 under 35 U.S.C. § 103
Issue: Under 35 U.S.C. § 103, did the Examiner err by finding that
the combination of Kleist and Horowitz teaches or suggests the following
limitations of independent claim 1?
generate in the memory an association between a given
longitude and latitude pair and each zip code within a certain
radius from the given longitude and latitude pair; and . . .

identify whether the landfall location corresponds to a zip
code associated with the given longitude latitude pair in the
memory.
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The Examiner’s mapping of the “generate” limitation
The Examiner finds: (1) Kleist’s illustration in Fig. 3 of an arc (i.e., a
sector) overlaid over a county map, and (2) the description of interpolating
population or property values within the sector that also contains zip code
information (Kleist col. 3, lines 13–21), collectively teach or suggest the
“generate” limitation of claim 1. See Final Act. 7.
The Examiner’s mapping of the “identify” limitation
The Examiner finds: (1) Kleist’s illustrations in Figures 3 and 5
(depicting a geographic database receiving weather information), and, (2)
the associated description of identifying the portion of each county
potentially affected by a thunderstorm based on the storm path probability
(Kleist col. 4, lines 16–21), collectively teach or suggest the “identify”
limitation of claim 1. See Final Act. 7.
However, Appellant contends that Kleist’s interpolation of population
and property values do not teach or suggest the “generate” limitation. In
particular, Appellant argues that the latitude-longitude pairs in Kleist are
associated with meters of Easting and Northing (Kleist col. 3, lines 48–52),
not zip codes.
For essentially the same reason, Appellant contends that Kleist also
does not teach or suggest the “identify” limitation. See Appeal Br. 10–11.
Appellant further submits that “Horowitz does not make up for the
deficiencies in Kleist.” Appeal Br. 11.

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In response, the Examiner finds and explains:
Any county shown in Fig. 3 is going to have a zip code within an
arc (i.e., radius) and Column 3, lines 33-67 further supports that
the zip codes in Kleist are used to associate with longitude-
latitude pairs. Hence, the landfall location of the storm can be
associated with the zip codes. It would be obvious to one of
ordinary skill in the art that both latitude-longitude system and
the State Plane Coordinate System (meters of Easting and
Northing) are mathematics-based graphical systems to describe
specific positions on the surface of the Earth. Therefore, Kleist
would be able to identify whether the landfall location
corresponds to an associated zip code. Hence, it can be easily
understood that the latitude-longitude pairs in Kleist are
associated with zip codes.
Ans. 10.
Based upon a preponderance of the evidence, we agree with Appellant
that the combination of Kleist and Horowitz does not teach or suggest the
“generate” and “identify” limitations of claim 1, because we find the
longitude-latitude pairs in Kleist are associated with meters of Easting and
Northing, not zip codes. See Appeal Br. 10–11.
The pertinent cited portions of Kleist are reproduced below:
As shown in FIG. 3, the sector 104 may be overlaid a map 10 of
a geographic area 106. The population or property value within
the sector 104 may be interpolated from data maintained by the
United States Census Bureau or other source. The United States
Census Bureau maintains information regarding population base,
property values, etc., by county, zip code or similar geographic
division.
Kleist col. 3, lines 13–19 (emphasis added).

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At step 206, the vertices of the geographic regions from step 202
and weather-affected polygons from step 200 are converted from
latitude, longitude pairs to meters of Easting 50 and Northing.
Kleist col. 3, lines 48–51 (emphasis added).
Once the potentially affected counties are identified and the
portion of each county potentially affected is calculated, the data
for each county (or smaller sections 108-114, if available and
affected) is used to calculate the total number of people, property,
traffic, infrastructure, etc. threatened by the storm (step 214).
Kleist col. 4, lines 16–21.
As found by the Examiner, the teachings in Kleist of: (1) overlaying
an arc (i.e., sector) over a county map, (2) maintaining population and
property value information by zip code, (3) maintaining a geographic
database with coordinate data, and, (4) converting longitude-latitude pairs
with meters of Easting and Northing, enable Kleist to identify whether a
landfall location corresponds to a zip code associated with the sector. See
Ans. 10.
However, based upon our review of the evidence cited by the
Examiner (Final Act. 6–8; Ans. 9–11), we agree with Appellant that there is
no teaching or reasonable suggestion of the association of a zip code with a
longitude-latitude pair in the manner required by the “generate” and
“identify” limitations of claim 1.
Accordingly, we are constrained on this record to reverse the
Examiner’s obviousness Rejection B of independent claim 1 under 35
U.S.C. § 103 over the collective teachings and suggestions of Kleist and
Horowitz. For essentially the same reasons, we also reverse obviousness
Rejection B of independent claims 9 and 17, which recite similar limitations
commensurate in scope to the aforementioned limitations of claim 1.
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Dependent claims 2–8 and 10–16 stand with the respective independent
claim from which they depend.

CONCLUSIONS
The Examiner erred in rejecting claims 1–17 as being ineligible under
35 U.S.C. § 101.
The Examiner erred in rejecting claims 1–17 as being obvious under
35 U.S.C. § 103 over the cited combination of Kleist and Horowitz.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–17 101 Eligibility 1–17
1–17 103 Kleist, Horowitz 1–17
Overall
Outcome
1–17

REVERSED