Daley, Thomas J. et al.

Patent Trials and Appeals Board

Aug 21, 2019

10766965 - (D) (P.T.A.B. Aug. 21, 2019)

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.
10/766,965 01/29/2004 Thomas J. Daley 04-6175 4387
63710 7590 08/21/2019
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
BEHNCKE, CHRISTINE M
ART UNIT PAPER NUMBER
3624
NOTIFICATION DATE DELIVERY MODE
08/21/2019 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 THOMAS J. DALEY, PAVAN K. GARAPATI,
PHIL G. REEVES, and MARK E. STUTZMANN
____________________

Appeal 2018-007453
Application 10/766,9651
Technology Center 3600
____________________

Before ROBERT E. NAPPI, SCOTT B. HOWARD, and
MICHAEL T. CYGAN, Administrative Patent Judges.

HOWARD, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 12, 17, 18, 22, 34, 36–41, and 50–52, which constitute all of the
claims pending in this application. Claims 1–11, 13–16, 19–21, 23–33, 35,
and 42–49 have been cancelled. App. Br. 10–13 (Claims App’x). We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify BGC Partners, Inc. as the real party in interest. App.
Br. 3.
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THE INVENTION
The disclosed and claimed invention is directed to “[a] system for
avoiding transaction costs associated with trading orders comprises a
memory and a processor.” Abstract.
Claim 12, which is illustrative of the claimed subject matter, is
reproduced in the analysis section.

REJECTION
Claims 12, 17, 18, 22, 34, 36–41, and 50–52 stand rejected under 35
U.S.C. § 101 as directed to patent-ineligible subject matter.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants’ arguments regarding the pending
claims.
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., 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
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
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we first determine what concept the claim 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.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against 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, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
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attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
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). “A claim that recites an abstract idea must include ‘additional
features’ to ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019)
(“Memorandum”). Under that guidance, 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); and

(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
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See Memorandum, 84 Fed. Reg. at 52, 55–56. Only if a claim (1) recites a
judicial exception and (2) does not integrate that exception into a practical
application, do we then look to whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is 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 id. at 56.
USPTO Step 2A, Prong 1
The Examiner determines that the pending claims are “directed to . . .
processing trading orders in a trading exchange platform, as evidenced by
the claim language found in claim 12, which is collecting information,
analyzing it and displaying certain results of the collection and analysis
(Electric Power Group) and obtaining and comparing intangible data
(CyberSource),” which, according to the Examiner, is an abstract idea. Final
Act. 6 (emphasis omitted); see also Ans. 3–4.
The Memorandum “extracts and synthesizes key concepts identified
by the courts as abstract ideas to explain that the abstract idea exception
includes the following groupings of subject matter, when recited as such in a
claim limitation(s) (that is, when recited on their own or per se)”:
(a) Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical calculations;
(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;
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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); and
(c) Mental processes—concepts performed in the human mind
(including an observation, evaluation, judgment, opinion).
Memorandum, 84 Fed. Reg. at 52 (footnotes omitted).
Claim 12 is reproduced below with certain limitations emphasized and
numbers added:
12. A method comprising:
[1] receiving, by a processor of a trading exchange
platform that manages trading between a network of remote
client devices and a plurality of market centers, disclosure
policies and fee policies for each of the plurality of market
centers, in which each market center is an electronic market
center that is external to the trading exchange platform;
[2] populating, by the processor, a database with the
disclosure policies and fee policies;
[3] receiving, by the processor from a client device of the
network of remote client devices over a communication
interface, [] a first trading order for a financial instrument, in
which the trading order comprises a desired quantity, a desired
price, and a desired disclosure policy;
[4] matching, by the processor, a portion of the desired
quantity of the first trading order with at least one internal
trading order in an order book of the trading exchange
platform;
[5] computing, by the processor, a remaining quantity of
the first trading order, in which the remaining quantity
comprises the desired quantity minus the portion of the first
trading order that was matched with the at least one internal
trading order;
[6] based on disclosure policies in the database,
identifying, by the processor, at least one market center of the
plurality of market centers that is capable of matching the
remaining quantity with the desired disclosure policy;
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[7] receiving, by the processor, best pricing information
for the financial instrument at each of the at least one of the
plurality of market centers;
[8] calculating, by the processor based on the fee policies
in the database, adjusted best pricing information for each of
the at least one of the plurality of market centers;
[9] selecting, by the processor, a single one of the at least
one market center based on the adjusted best pricing
information;
[10] determining, by the processor, that the single one
market center charges a fee for orders that remain unmatched
for a length of time;
[11] routing, by the processor, a second trading order
that comprises the remaining quantity to the single one market
center;
[12] monitoring, by the processor, whether the second
trading order is matched within the length of time;
[13] in response to determining that the second trading
order will remain at the single one market center for longer
than the length of time, canceling, by the processor, the second
trading order and submitting, by the processor, a third trading
order that comprises the remaining quantity to the single one
market center.
App. Br. 10–11 (emphases added). These limitations, under their broadest
reasonable interpretation, recite processing trading orders in a trading
exchange platform. Processing trading orders in a trading exchange
platform involves selling, which is an economic act, and a security, which is
ordinarily sold in financial markets. Thus, like the concept of intermediated
settlement in Alice, and the concept of hedging in Bilski, the concept of
placing trading orders recited in Appellants’ claims “is a fundamental
economic practice long prevalent in our system of commerce.” Alice, 573
U.S. at 216 (citations and internal quotation marks omitted); see also OIP
Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63 (Fed. Cir. 2015)
(concluding that claimed concept of “offer-based price optimization” is an
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abstract idea “similar to other ‘fundamental economic concepts’ found to be
abstract ideas by the Supreme Court and this court”); Credit Acceptance
Corp. v. Westlake Servs., 859 F.3d 1044, 1054 (Fed. Cir. 2017), (“The Board
determined that the claims are directed to the abstract idea of ‘processing an
application for financing a purchase.’ . . . We agree.”). Accordingly, we
conclude the claims recite a fundamental economic practice, which is one of
certain methods of organizing human activity identified in the Revised
Guidance, and thus an abstract idea.
Additionally, the emphasized limitations above recite steps of
observation, evaluation, and judgement that can be practically performed by
a human, either mentally or with the use of pen and paper. Specifically, the
limitations all related to placing trade orders, determining the price of the
orders, and selecting the market with the best prices. Each of those steps,
both individually and as a combination, can be performed by a human, either
mentally or with the aid of paper and pencil, which is similar to the claims
found patent ineligible as mental processes in Electric Power Group and
CyberSource. See Elec. Power Grp., LLC v. Alstom, S.A., 830 F.3d 1350,
1353–54 (Fed. Cir. 2016) (“[W]e have treated collecting information,
including when limited to particular content (which does not change its
character as information), as within the realm of abstract ideas. . . . In a
similar vein, we have treated analyzing information by steps people go
through in their minds, or by mathematical algorithms, without more, as
essentially mental processes within the abstract-idea category. . . . And we
have recognized that merely presenting the results of abstract processes of
collecting and analyzing information, without more (such as identifying a
particular tool for presentation), is abstract as an ancillary part of such
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collection and analysis.” (citations omitted)); CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1373 (Fed. Cir. 2011) (“Such a method that
can be performed by human thought alone is merely an abstract idea and is
not patent-eligible under § 101.”) (footnote omitted)); see also Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016)
(“[W]ith the exception of generic computer-implemented steps, there is
nothing in the claims themselves that foreclose them from being performed
by a human, mentally or with pen and paper.”); Versata Dev. Grp. v. SAP
Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (“Courts have examined
claims that required the use of a computer and still found that the
underlying, patent-ineligible invention could be performed via pen and paper
or in a person’s mind.”). Accordingly, we conclude the claim recites a
method of observation, evaluation, and judgment that can be practically
performed in the human mind, which is a mental process identified in the
Memorandum, and thus an abstract idea.
We are not persuaded by Appellants’ arguments that the Examiner
erred. First, Appellants argue that the Examiner improperly ignored
elements of the claim. App. Br. 7. According to Appellants, because of the
improper “reduction of the claims,” the Examiner “failed to identify an idea
to which the claims are allegedly directed.” Id.
We do not agree. As discussed above, claim 12 recites steps for
processing trading orders in a trading exchange platform. Accordingly, the
Examiner sufficiently explains how the claims recite processing trading
orders in a trading exchange platform without improperly oversimplifying
the claims.
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Second, Appellants argue that the Examiner erred by “not cit[ing] to
appropriate court decisions or explain how the concepts correspond to
concepts in cited court decisions.” Id. According to Appellants, “the
Examiner mentions Electric Power Group and Cyber Source” but “Electric
Power Grid involved power use monitoring” and “Cybersource involved
credit card fraud.” Id. at 8.
We disagree. The Examiner cites two cases, Electric Power Group
and CyberSource, and explains how the abstract idea recited in claim 12 is
similar to the abstract idea recited in those cases. See Final Act. 7–9;
Ans. 3–5. That is, like claim 12, the claims in Electric Power Group and
CyberSource are directed to mental steps which can be practically performed
by the human mind.
Nor are we persuaded by Appellants’ argument that the claims in the
cases are directed to different technology: power use monitoring in Electric
Power Group and credit card fraud in CyberSource. Appellants’ argument
focuses too narrowly on the technology and ignores the broader holding of
those cases.
USPTO Step 2A, Prong 22
In determining whether claim 12 is “directed to” the identified
abstract ideas, we next consider whether claim 12 recites additional elements
that integrate the judicial exception into a practical application. For the
reasons set forth below, we discern no additional element (or combination of

2 We acknowledge that some of these considerations may be properly
evaluated under Step 2 of Alice (Step 2B of Office guidance). Solely for
purposes of maintaining consistent treatment within the Office, we evaluate
it under Step 1 of Alice (Step 2A of Office guidance).
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elements) recited in claim 12 that integrates the judicial exception into a
practical application. See Memorandum at 54–55.
The Examiner determines that the additional limitations recited in
claim 12 simply invoke the use of “computers, networks and displays
[which] does not transform the claimed subject matter into patent-eligible
applications.” Final Act. 6. Specifically, the Examiner determines that
“[t]he claims at issue do not require any nonconventional computer network,
or display components, or even a ‘non-conventional and non-generic
arrangement of known, conventional pieces,’ but merely call for
performance of the claimed information collection analysis and display
functions ‘on a set of generic computer components’ and display devices.”
Id. at 6–7 (citing BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility
LLC, 827 F.3d 1341 (Fed. Cir. 2016)).
The Examiner further determines that the additional limitations of a
processor, remote client devices, trading exchange apparatus, process,
network interface, and memory do not “recite an improvement to another
technology or technical field, an improvement to the functioning of the
computer itself, or meaningful limitations beyond generally linking the use
of an abstract idea to a particular technological environment.” Id. at 7.
Instead, the Examiner determines that the improvement recited in the claims
are improvements to the abstract idea. Id. at 8–9; see also Ans. 6 (“The
identified improvements argued by Applicant are at best improvements to
the performance of the abstract idea (e.g., improvements made in the
underlying business method) and not in the operations of any additional
elements or technology.”).
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The Examiner further finds that although Appellants argue that the
claim is directed to a technological improvement, Appellants “have not
provided any evidence or technical reasoning that the claims improve some
existing technological process or solves some technological problem in
conventional industry practice, such as in Diehr.” Ans. 6; see also id. at 7
(“Use of a computer or other machinery in its ordinary capacity for
economic or other tasks (e.g., to receive, store, or transmit data) or simply
adding a general purpose computer or computer components after the fact to
an abstract idea (e.g., a fundamental economic practice or mathematical
equation) does not provide significantly more.” (citations omitted)).
Appellants argue the Examiner improperly focuses on the hardware
components of the claims and ignores the inventive software components.
App. Br. 8. According to Appellants, the Federal Circuit recognizes that
“software can make an inventive concept.” Id.
Appellants further argue, citing BASCOM, that the ability to
implement an invention using “generic computer elements or performing
generic functions is not determinative of whether a claim adds significantly
more to an abstract idea.” Id. at 9. According to Appellants, because the
claimed invention “improve[s] the efficiency and usability of trading
systems,” the additional limitations “add significantly more than an abstract
idea.” Id.
We disagree with Appellants. Claim 12 does not constitute an
improvement to computer technology; rather, it merely adapts the
fundamental economic practice and mental process described above to an
execution of steps performed by computer components. Relying on a
computer to perform routine tasks more quickly or more accurately is
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insufficient to render a claim patent eligible. See Alice, 573 U.S. at 224
(“use of a computer to create electronic records, track multiple transactions,
and issue simultaneous instructions” is not an inventive concept); Bancorp
Servs., L.L.C. v. Sun Life Assur. Co. of Can. (U.S.), 687 F.3d 1266, 1278
(Fed. Cir. 2012) (a computer “employed only for its most basic function . . .
does not impose meaningful limits on the scope of those claims”); MPEP
§ 2106.05(f)(2) (“Use of a computer or other machinery in its ordinary
capacity for economic or other tasks (e.g., to receive, store, or transmit data)
or simply adding a general purpose computer or computer components after
the fact to an abstract idea (e.g., a fundamental economic practice or
mathematical equation) does not provide significantly more.”).
Contrary the Appellants’ arguments, claim 12 is not similar to the
claims found patent eligible in BASCOM. There, the claims recited a
“specific method of filtering Internet content” requiring “the installation of a
filtering tool at a specific location, remote from the end-users, with
customizable filtering features specific to each end user.” BASCOM,
827 F.3d at 1345–46, 1350. The Federal Circuit reasoned that the claims
covered “a technology-based solution . . . to filter content on the Internet that
overcomes existing problems with other Internet filtering systems” and
“improve[s] an existing technological process.” Id. at 1351 (citing Alice,
573 U.S. at 223); see Alice, 573 U.S. at 223 (explaining that “the claims in
Diehr were patent eligible because they improved an existing technological
process”).
In contrast to the claims in BASCOM, the claims here do not cover a
technology-based solution that improves an existing technological process.
See Final Act. 6–9; Ans. 4–8. As the Examiner determines, the claimed
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invention does not focus on improving an existing technological process,
Ans. 7–88. Hence, the claims here do not resemble the claims in BASCOM.
Similarly unpersuasive is Appellants’ reliance on Enfish3 in arguing
that computer software can be patentable. In Enfish, the patent was
“directed to a specific improvement to computer functionality,” embodied in
a self-referential database table, and recited technical details for a software
component that distinguished from the prior art, thus improving how the
computer was configured. Enfish, 822 F.3d at 1338–1339. Further, the
Federal Circuit has explained that the claims “in Enfish did more than allow
computers to perform familiar tasks with greater speed and efficiency” by
“permitt[ing] users to launch and construct databases in a new way.”
Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018).
In contrast to Enfish, Appellants do not describe an advance in
hardware or software that, for example, causes a computer itself or a
network itself to operate faster or more efficiently. The alleged
improvement in processing trading orders in a trading exchange platform
does not parallel the improvement in Enfish and does not impart patent
eligibility. See Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d
905, 910 (Fed. Cir. 2017) (explaining that the claims in Enfish “focused on
an improvement to computer functionality itself, not on economic or other
tasks for which a computer is used in its ordinary capacity”). The claims
here use computers and networks in their ordinary capacities.
Accordingly, we are not persuaded of error in the Examiner’s
determination that claim 12 is recites an abstract idea, and we find the

3 Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016).
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claimed additional elements do not integrate the abstract idea into a practical
application.
USPTO Step 2B
Turning to step 2 of the Alice/Mayo framework, we look to whether
claim 12 (a) adds a specific limitation or combination of limitations that are
not well-understood, routine, conventional activity in the field, or (b) simply
appends well-understood, routine, conventional activities previously known
to the industry, specified at a high level of generality, to the judicial
exception. Memorandum, 84 Fed. Reg. at 56.
The Examiner determines that “[t]he steps/functions of identifying
data, accessing data, determining data, and presenting data are well-
understood, routine, and conventional functions of a generic computer.”
Ans. 7 (citing FairWarning IP, LLC v. latric Sys., Inc., 839 F.3d 1089, 1095
(Fed. Cir. 2016)). Appellants do not directly address this finding.
In FairWarning, the Federal Circuit found that a user interface and a
microprocessor that analyzes data are “generic computer elements” that “do
not alone transform an otherwise abstract idea into patent-eligible subject
matter.” 839 F.3d at 1096 (citing DDR Holdings, LLC v. Hotels.com, L.P.,
773 F.3d 1245, 1256 (Fed. Cir. 2014)). Similarly, the Federal Circuit has
also found communication networks generic. E.g., Mortg. Grader, Inc. v.
First Choice Loan Serv. Inc., 811 F.3d 1314, 1324–25 (Fed. Cir. 2016)
(“Instead, the claims ‘add’ only generic computer components such as an
‘interface,’ ‘network,’ and ‘database.’ These generic computer components
do not satisfy the inventive concept requirement.” (citations omitted)).
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Similar to the claims found not patent eligible in FairWarning and
Mortgage Grader, the additional elements of claim 12 of the instant
application merely recites generic computer components such as a processor
and a communications link. Such generic components have been found by
the Courts to be well-understood, routine, and conventional and not
sufficient to transform an abstract idea into patent-eligible subject matter.
Moreover, as pointed out by the Examiner (Ans. 6–7), Appellants have not
argued that the additional limitations are anything other than well-
understood, routine, and conventional. See Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to present
arguments on a particular issue — or, more broadly, on a particular rejection
— the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection.”).
Conclusion on Section 101 Rejection
Accordingly, we sustain the Examiner’s rejection of claim 12 as being
directed to patent-ineligible subject matter, as well as independent claim 34
with commensurate limitations, and dependent claims 17, 18, 22, 36–41, and
50–52, not separately argued.

DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 12, 17, 18, 22, 34, 36–41, and 50–52.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). See 37
C.F.R. § 41.50(f).
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AFFIRMED