Gilbert, Mary Ann.

Patent Trials and Appeals Board

Aug 12, 2020

13616937 - (D) (P.T.A.B. Aug. 12, 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.
13/616,937 09/14/2012 Andrew C. Gilbert 01-1046-C1 1233
63710 7590 08/12/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
KANERVO, VIRPI H
ART UNIT PAPER NUMBER
3691
NOTIFICATION DATE DELIVERY MODE
08/12/2020 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
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 ANDREW C. GILBERT
___________

Appeal 2019-001719
Application 13/616,937
Technology Center 3600
____________

Before ERIC B. CHEN, JEREMY J. CURCURI, and JOHN F. HORVATH,
Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–10, 15–17, 19–21, and 26–28.
Claims 11–14, 18, 22–25, and 29 have been cancelled. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER
The claims are directed to creating and trading dynamic securities.
(Abstract.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter, with bracketing added and with disputed limitations in italics:
1. A method for creating a dynamic security over an
electronic trading system communicating with interfaces of
computing devices, the method comprising:
[i] generating electronic signals for causing to execute
commands to communicate to a computing device to auto-
populate a graphical user interface with a first portion to display
a plurality of securities and a second portion to display a list of
selected plurality of securities;
[ii] in response to a request to select a plurality of
securities from the graphical user interface of a computing
device, selecting a plurality of securities from a list of securities
to form a selected plurality of securities, the plurality of
securities include an ownership interest in real property and a
lease to the real property;

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as BGC
Partners, Inc. (Appeal Br. 3.)
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[iii] forming a dynamic security from the selected
plurality of securities;
[iv] monitoring a rate of return of the dynamic security;
and
[v] comparing the rate of return to a pre-determined
target rate of return;
[vi] generating electronic signals for causing to execute
commands to communicate to the graphical user interface of the
computing device, graphical objects to allow user selection for
trading of the selected securities or the dynamic security;
[vii] generating electronic signals for causing to execute
commands for providing a notification to the graphical user
interface of the computing device when the rate of return
deviates at a pre-determined ratio from the target rate of return;
and
[viii] generating electronic signals for causing to execute
commands for trading at least one of the selected plurality of
securities from the dynamic security.

REJECTIONS
Claims 1–10, 15–17, 19–21, and 26–28 stand rejected under 35 U.S.C.
§ 101 as directed to patent-ineligible subject matter. (Final Act. 5.)
Claims 1–10, 15–17, 19–21, and 26–28 stand rejected under 35 U.S.C.
§ 112, first paragraph, as failing to comply with the written description
requirement. (Final Act. 4.)
The rejection of claims 1–10, 15–17, 19–21, and 26–28 under 35
U.S.C. § 103(a) has been withdrawn by the Examiner. (Ans. 3.)

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OPINION
§ 101 Rejection
We are unpersuaded by Appellant’s arguments (Appeal Br. 8–14) that
independent claims 1 and 19 are directed to patent-eligible subject matter
under 35 U.S.C. § 101.
The Examiner determined that:
The creation of forming a dynamic security from
investor-selected plurality of securities where the dynamic
security can be traded as a whole or alternatively the individual
components of the whole may be traded separately, as recited in
the independent claims 1 and 19, is similar to a fundamental
economic practice found by the courts to be abstract ideas (e.g.,
mitigating settlement risk in Alice Corp.).
(Final Act. 6; see also Ans. 5.) Moreover, regarding the additional elements
of these claims (e.g., a processor, memory, or graphical user interface) the
Examiner determined that:
Individually, the additional elements are well understood,
routine, and conventional elements that amount to no more than
implementing the abstract idea of forming a dynamic security
from investor-selected plurality of securities where the dynamic
security can be traded as a whole or alternatively the individual
components of the whole may be traded separately with a
computerized system.
(Final Act. 7.) We agree with the Examiner’s determinations and ultimate
conclusion that the claims are directed to patent-ineligible subject matter.
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
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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. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative Servs. v.
Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with
that framework, 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, 67 (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
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mathematical formula.” Diehr, 450 U.S. at 187; 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 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 (citation 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 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY
GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019); see also USPTO, October 2019
Update: Subject Matter Eligibility, 84 Fed. Reg. 55942 (Oct. 17, 2019).
Under that guidance, we first look to whether the claim recites:
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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) (9th
ed. 2019)).
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
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 84 Fed. Reg. 56.

Are the claims at issue directed
to a patent-ineligible concept?
Step One
Claim 1 is a method claim, which falls within the “process” category
of 35 U.S.C. § 101. Likewise, claim 19 is a system claim, which falls within
the “manufacture” category of 35 U.S.C. § 101. Therefore, claims 1 and 19
fall within one of the four statutory categories of patentable subject matter
identified by 35 U.S.C. § 101.
Although claims 1 and 19 fall within the statutory categories, we must
still determine whether the claims are directed to a judicial exception,
namely an abstract idea. See Alice, 573 U.S. at 216. Thus, we must
determine whether the claims recite a judicial exception and whether the
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exception is integrated into a practical application. See 84 Fed. Reg. at 52–
55. If a claim recites a judicial exception without integrating the judicial
exception into a practical application, the claim is directed to a judicial
exception under the first step of the Alice/Mayo test. See id.

Step 2A, Prong One
Independent claim 1 recites the following limitations: “[ii] selecting a
plurality of securities from a list of securities to form a selected plurality of
securities, the plurality of securities include an ownership interest in real
property and a lease to the real property,” “[iii] forming a dynamic security
from the selected plurality of securities,” “[iv] monitoring a rate of return of
the dynamic security,” “[v] comparing the rate of return to a pre-determined
target rate of return,” “[vi] allow user selection for trading of the selected
securities or the dynamic security,” “[vii] providing a notification . . . when
the rate of return deviates at a pre-determined ratio from the target rate of
return,” and “[viii] trading at least one of the selected plurality of securities
from the dynamic security.”
Such method steps of claim 1 are directed to a patent-ineligible
abstract idea of certain methods of organizing human activity, for example
the fundamental economic practice of trading stocks (or other securities) on
a stock exchange, which would include monitoring such stocks for a rate of
return or comparing that rate of return to a target rate of return. See, e.g.,
Alice, 573 U.S. at 219–20 (a “fundamental economic practice” is an abstract
idea). In particular, in the “Background of the Invention” section,
Appellants’ Specification states that “[f]or example, electronic trading
systems have been created which facilitate the trading of financial
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instruments such as stocks, bonds, currency, futures, or other suitable
financial instruments.” (Spec. ¶ 1.)
Alternatively, such method steps of claim 1 are directed to a patent-
ineligible abstract idea of mental steps. See, e.g., CyberSource, 654 F.3d
1366 at 1372–73 (“unpatentable mental processes” include “steps [that] can
be performed in the human mind, or by a human using a pen and paper”).
For example, a person could: (i) select multiple securities for purchase from
a list of available securities; (ii) continuously monitor the rate of return for
each purchased security relative to a benchmark index; and (iii) sell the
security if the rate of return either outpaces or lags the benchmark index.
Accordingly, claim 1 recites a judicial exception. Claim 19 recites
limitations similar to those discussed with respect to claim 1. Thus, claim 19
also recite a judicial exception.

Step 2A, Prong Two
Because claims 1 and 19 recite a judicial exception, we next
determine if the claims recite additional elements that integrate the judicial
exception into a practical application.
Independent claim 1 recites the following: “[ii] in response to a
request to select a plurality of securities from the graphical user interface of
a computing device, selecting a plurality of securities,” “[vi] generating
electronic signals for causing to execute commands to communicate to the
graphical user interface of the computing device, graphical objects to allow
user selection for trading of the selected securities or the dynamic security,”
“[vii] generating electronic signals for causing to execute commands for
providing a notification to the graphical user interface of the computing
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device when the rate of return deviates at a pre-determined ratio from the
target rate of return,” and “[viii] generating electronic signals for causing to
execute commands for trading at least one of the selected plurality of
securities from the dynamic security.”
The recited additional elements, including “computing device,”
“graphical user interface,” and “graphical objects” are merely tools for
performing the recited abstract idea. See Affinity Labs of Tex., LLC v.
DIRECTV, LLC, 838 F.3d 1253, 1262 (Fed. Cir. 2016) (“[T]he claims are
directed not to an improvement in cellular telephones but simply to the use
of cellular telephones as tools in the aid of a process focused on an abstract
idea.”).
Moreover, claim 1 further recites “[i] generating electronic signals for
causing to execute commands to communicate to a computing device to
auto-populate a graphical user interface with a first portion to display a
plurality of securities and a second portion to display a list of selected
plurality of securities” Such limitations merely add insignificant extra-
solution activity to the judicial exception. See Flook, 437 U.S. at 590 (“The
notion that post-solution activity, no matter how conventional or obvious in
itself, can transform an unpatentable principle into a patentable process
exalts form over substance”).
Accordingly, claim 1 does not recite additional elements that integrate
the judicial exception into a practical application. Claim 19 recites
limitations similar to those discussed with respect to claim 1. Thus, claim 19
does not recite additional elements that integrate the judicial exception into a
practical application.

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Is there something else in the claims
that ensures that they are directed to significantly
more than a patent ineligible concept?
Step 2B
Because claims 1 and 19 are directed to a judicial exception, we next
determine, according to Alice, whether these claims recite an element, or
combination of elements, that ensure that the claim is directed to
significantly more than the judicial exception.
Independent claim 1 recites “graphical user interface,” “computing
device,” and “graphical objects.” Similarly, independent claim 19 recites
“computing devices,” “processor,” “memory,” and “graphical user
interface.”
With respect to the claimed additional elements, Appellant’s
Specification discloses the following:
In system 100, user computer 102 may be a computer,
processor, personal computer, laptop computer, handheld
computer, personal digital assistant, computer terminal, a
combination of such devices, or any other suitable data
processing device. User computer 102 may have any suitable
device capable of receiving user input and displaying user
choices.
(Spec. ¶ 23.)
FIG. 2 is an illustration of an interface that may be
presented in accordance with certain aspects of the present
invention. As shown, interface 200 may include a menu of
securities 202, up and down arrows 204, price of security field
206, quantity of security field 208, up and down arrows 210,
purchase button 212, basket of securities 220, up and down
arrows 222, and sell button 224.
(Id. ¶ 28.)
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The generalized functional terms by which the additional elements are
described reasonably indicate that Appellant’s Specification discloses: (i) a
conventional “graphical user interface” with conventional “graphical
objects” (e.g., interface 200 with menu of securities 202, up and down
arrows 204, price of security field 206, quantity of security field 208, up and
down arrows 210, purchase button 212, basket of securities 220, up and
down arrows 222, and sell button 224, as illustrated in Figure 2 ); (ii) a
conventional “computing device” (e.g., user computer 102 (id. ¶ 23)); and
(iii) conventional “processor” and “memory”2 (e.g., user computer 102 with
computer processor (id.)).
Moreover, Appellant’s Figure 1 illustrates “system 100 [that] may
include one or more user computers 102 . . . connected by one or more
communication links 104 and a computer network 106 to a trading server
108.” (¶ 22.) Similarly, Appellant’s Figure 3 illustrates “a flow diagram for
the creation and trading of a dynamic security.” (¶ 31.) Accordingly,
Appellant’s Specification, including Figures 1 and 3, discloses that: (i) the
graphical user interface includes graphical objects; and (ii) computing
device, having a processor and a memory, function cooperatively as an
ordered combination.
Thus, independent claims 1 and 19 do no more than require generic,
purely conventional computer elements, as an ordered combination,

2 One relevant definition of “processor” (or “CPU”) is “[t]he computational
and control unit of a computer,” such that “the term [CPU] encompasses
both the processor and the computer’s memory.” MICROSOFT® COMPUTER
DICTIONARY 132 (5th ed. 2002).
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performing generic computer functions, rather than improve computer
capabilities.
Appellant argues the following:
Appellant’s claimed subject matter is also drawn to an
improved user interface which provides advantages over the
prior art systems which improves the efficiency of the
electronic devices, thereby overcoming disadvantages of prior
systems, as explained above. As the Federal Circuit in Core
Wireless has explicitly held that an improved graphical user
interface is patent eligible, Appellant requests that the Examiner
similarly find that the presently claimed invention provides a
user interface which may improve the efficiency of using the
electronic devices is patent-eligible.
(Appeal Br. 11–12 (emphases omitted).) In particular, Appellant cites to
paragraph 32 of the Specification, which discloses that “[t]he system and
methods 300 may monitor the trading price of the dynamic security 306 or
monitor included in the dynamic security 308” and “[t]he user is notified in
Step 314 and Step 316 when securities deviate substantially from the pre-
determined target rate.” (Id. at 10.) Similarly, Appellant argues “that the
claimed invention, in one example, recites an additional element (or
combination of elements) that are ‘not well-understood, routine or
conventional’ for displaying on a graphical user interface visual indicators
based on user movement and selection.” (Id. at 12–13 (emphases omitted).)
However, Appellant has not adequately explained why the claim “purport[s]
to improve the functioning of the computer itself” or “any other technology
or technical field.” Alice, 573 U.S. at 225. In particular, Appellant has not
explained why monitoring the trading price of securities, which is either a
method of organizing human activity (e.g., fundamental economic practice)
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or mental steps, improves the function of a computer or other technology,
such as the claimed “graphical user interface.”
Appellant further argues the following:
The instant claims recite features that include displaying on a
graphical user interface visual indicators based on user
movement and selection which may help reduce the number of
transactions over the network. It is clear that the features of the
instant claims, including at least the claimed elements
emphasized above, do not preempt all ways of achieving the
intended result because the claimed recitations are very specific
and do not cover all possible approaches.
(Appeal Br. 14 (emphases omitted).) However, although “preemption may
signal patent ineligible subject matter, the absence of complete preemption
does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). Where claims are
deemed to recite only patent ineligible subject matter under the two-step
Alice analysis, as they are here, “preemption concerns are fully addressed
and made moot.” Id.
Thus, we agree with the Examiner that claims 1 and 19 are directed
towards patent-ineligible subject matter.
Accordingly, we sustain the rejection of independent claims 1 and 19
under 35 U.S.C. § 101. Claims 2–10, 15–17, 20, 21, and 26–28 depend from
claims 1 and 19, and Appellant has not presented any additional substantive
arguments with respect to these claims. Therefore, we sustain the rejection
of claims 2–10, 15–17, 20, 21, and 26–28 under 35 U.S.C. § 101, for the
same reasons discussed with respect to independent claims 1 and 19.

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§ 112, First Paragraph Rejection
We are persuaded by Appellant’s arguments (Reply Br. 3) that the
limitations “to auto-populate a graphical user interface” and “graphical
objects to allow user selection for trading,” as recited in independent
claims 1 and 19, comply with the written description requirement under 35
U.S.C. § 112, first paragraph.
The Examiner found that “both newly amended features [adding the
limitations ‘to auto-populate a graphical user interface’ and ‘graphical
objects to allow user selection for trading’] are new matter” because
Appellant’s Specification lacks written description support. (Ans. 4.) We
do not agree with the Examiner’s findings.
Appellant’s Figure 2, which illustrates interface 200, is reproduced
below:

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Figure 2 “is an illustration of an interface that may be presented in
accordance with certain aspects of the present invention.” (Spec. ¶ 28).
Moreover, Appellant’s Specification discloses the following:
As shown, interface 200 may include a menu of
securities 202, up and down arrows 204, price of security field
206, quantity of security field 208, up and down arrows 210,
purchase button 212, basket of securities 220, up and down
arrows 222, and sell button 224.
In order to create a dynamic security using interface 200,
the user preferably first selects two or more different securities
from a menu of securities 202. Up and down arrows 204 are
used to scroll through the menu of securities. As the user
scrolls through the menu, individual securities will be
highlighted one at a time. The price of each highlighted
security is displayed in field 206. . . . Once the desired security
and quantity thereof have been specified, the user may submit
the purchase order by pressing purchase button 212. Once the
purchase has been completed, the security will appear in the
basket of securities 220.
(Id. ¶¶ 28–29 (emphases added).)
In order to trade the dynamic security, the user can sell
the entire basket of securities 220 by highlighting the entire
collection of securities in field 220 and pressing sell button 224.
Alternatively, the user can sell individual securities by selecting
individual securities from field 220 through the use of the up
and down arrows 222. Once the desired individual security has
been selected from field 220, the user may complete the sale by
pressing sell button 224.
(Id. ¶ 30 (emphasis added).)
Thus, because Appellant’s Specification discloses that “interface 200
may include a menu of securities 202” from which individual securities are
selected, as illustrated in Figure 2, the Specification provides support for the
limitation “to auto-populate a graphical user interface.” Similarly, because
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Appellant’s Specification disclose that: (i) the user can buy securities by
navigating up and down arrows 204 to scroll through the menu of securities
220 and highlight securities, followed by pressing purchase button 212; and
(ii) the user can sell securities by navigating up and down arrows 222 to
scroll through basket of securities 220, followed by pressing sell button 224,
the Specification provides support for the limitation “graphical objects to
allow user selection for trading.”
Accordingly, we are persuaded by Appellant’s arguments that “the
interface includes a menu of securities which are auto-populated
(automatically) by the system as described in paragraphs [0028] of
Appellant’s published disclosure supports the features of ‘to auto-populate a
graphical user interface’” and “the up and down arrows are graphical objects
as described in paragraphs [0029] of Appellant’s published disclosure
supports the features of graphical objects to allow user selection for trading.”
(Reply Br. 3 (emphases omitted).)
Thus, we do not agree with the Examiner that the Specification fails to
provide written description support for the limitations “to auto-populate a
graphical user interface” and “graphical objects to allow user selection for
trading,” as recited in independent claims 1 and 19.
Accordingly, we do not sustain the rejection of independent claims 1
and 19 under 35 U.S.C. § 112, first paragraph. Claims 2–10, 15–17, 20, 21,
and 26–28 depend from claims 1 and 19. Therefore, we do not sustain the
rejection of claims 2–10, 15–17, 20, 21, and 26–28 under 35 U.S.C. § 112,
first paragraph for the same reasons discussed above with respect to
independent claims 1 and 19.

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CONCLUSION
The Examiner’s decision rejecting claims 1–10, 15–17, 19–21, and
26–28 under 35 U.S.C. § 101 is affirmed.
The Examiner’s decision rejecting claims 1–10, 15–17, 19–21, and
26–28 under 35 U.S.C. § 112, first paragraph is reversed.

DECISION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–10, 15–
17, 19–21,
26–28
101 Eligibility 1–10, 15–
17, 19–21,
26–28

1–10, 15–
17, 19–21,
26–28
112, first
paragraph
Written
Description
1–10, 15–
17, 19–21,
26–28
Overall
Outcome
1–10, 15–
17, 19–21,
26–28

TIME PERIOD FOR RESPONSE
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).

AFFIRMED