Intercontinental Exchange Holdings, Inc.

Patent Trials and Appeals Board

Jun 25, 2021

2021000317 (P.T.A.B. Jun. 25, 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.
14/618,067 02/10/2015 David R. Wender ICE-13-1102CON-DIV 1467
35811 7590 06/25/2021
IP GROUP OF DLA PIPER LLP (US)
ONE LIBERTY PLACE
1650 MARKET ST, SUITE 5000
PHILADELPHIA, PA 19103
EXAMINER
LEMIEUX, JESSICA
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
06/25/2021 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):
pto.phil@us.dlapiper.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID R. WENDER
____________

Appeal 2021-000317
Application 14/618,0671
Technology Center 3600
____________

Before JOHN A. JEFFERY, CATHERINE SHIANG, and
CARL L. SILVERMAN, Administrative Patent Judges.

SHIANG, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–3, 6, 7, 9, 10, 12–16, 18–26, 28, and 29, which are
pending and rejected in the application.2 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.

1 Appellant identifies Intercontinental Exchange Holdings, Inc. as the real
party in interest. Appeal Br. 1.
2 Claims 30–32 are not before us, as the Examiner has not entered any
rejection of such claims.
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STATEMENT OF THE CASE
Introduction
The present invention relates “to calculating and visually displaying
the profitability and risk profile of a proposed trade to facilitate processing
of a trade order.” Spec. ¶ 1.
In [an] embodiment, a system for trading financial
instruments may comprise an electronic exchange server. The
electronic exchange server may be configured to receive market
data relating to a financial asset, at least one pricing parameter
and proposed order quantity and price data. The electronic
exchange server may further be configured to construct a
proposed trade based on the order quantity and price data. The
electronic exchange server may further be configured to
calculate a theoretical price based on the received market data,
the at least one pricing parameter, and the proposed order price
data. The electronic exchange server may further be configured
to compare the proposed trade with the theoretical price to
assess profitability and display market data indicators relative
to the theoretical price indicator.

Spec. ¶ 6. Claim 1 is exemplary:
1. A system for generating an improved dynamic
graphical user interface (GUI), the system comprising:
an electronic exchange server configured to continuously
receive live market data;
the electronic exchange server comprising a processor
and a non-transitory computer-readable storage medium having
computer-readable program code portions stored therein,
wherein the computer-readable program code portions, when
executed, cause the electronic exchange server to:
generate, by the processor, a graphical user
interface (GUI) comprising a plurality of dedicated areas
comprising at least one input area for receiving input and
at least one dedicated display area for displaying one or
more graphic indicators;
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receive, via the at least one input area of the GUI,
input from at least one user device, the input comprising
data defining one or more of a pricing parameter, a
proposed order price, and one or more proposed trades;
determine, by the processor, a theoretical price
based on one or more of the live market data, the pricing
parameter, and the proposed order price;
generate, by the processor, a theoretical price
indicator associated with the determined theoretical
price;
generate, by the processor, one or more market
data indicators associated with the one or more proposed
trades, the one or more market data indicators comprising
a dynamic bar that continually moves within the at least
one dedicated area relative to the theoretical price
indicator based on fluctuations in the live market data;
display, within the at least one dedicated display
area of the GUI, the theoretical price indicator;
display, within the at least one dedicated display
area of the GUI, the one or more market data indicators;
determine, by the processor in real-time,
fluctuations in the live market data; and
in response to the determined fluctuations,
automatically and continuously move the dynamic bar
relative to the theoretical price indicator, such that a
distance between the dynamic bar and the theoretical
price indicator represents a change in profitability of
at least one of the one or more proposed trades in real-
time.

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Rejections3
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–3, 6, 7, 9, 10, 12–16,
18–26, 28, 29
Non-statutory Double Patenting,
Wender (US 10,282,783 B2, iss.
May. 7, 2019) 4
1–3, 6, 7, 9, 10, 12–16,
18–26, 28, 29
101 Eligibility

ANALYSIS5
Double Patenting
Appellant does not contest the non-statutory double patenting
rejection of claims 1–3, 6, 7, 9, 10, 12–16, 18–26, 28, and 29 over claims 1–
25 of Wender. Therefore, we summarily sustain the Examiner’s non-
statutory double patenting rejections. See Hyatt v. Dudas, 551 F.3d 1307,
1314 (Fed. Cir. 2008) (“[w]hen the appellant fails to contest a ground of
rejection to the Board, . . . the Board may treat any argument with respect to
that ground of rejection as waived”); see also Manual of Patent Examining
Procedure § 1205.02 (9th ed., rev. 10.2019, June 2020) (“If a ground of
rejection stated by the examiner is not addressed in the appellant’s brief,
appellant has waived any challenge to that ground of rejection and the Board

3 Throughout this opinion, we refer to (1) the Final Rejection dated
March 12, 2020 (“Final Act.”); (2) the Appeal Brief dated June 3, 2020
(“Appeal Br.”); (3) the Examiner’s Answer dated August 20, 2020 (“Ans.”);
and (4) the Reply Brief dated October 14, 2020 (“Reply Br.”).
4 Appellant notes (Appeal Br. 20), and the Examiner acknowledges
(Ans. 19), a typographical error in the U.S. patent number listed in the Final
Action. The correct number is listed above.
5 To the extent Appellant advances new arguments in the Reply Brief
without showing good cause, Appellant has waived such arguments. See 37
C.F.R. § 41.41(b)(2).
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may summarily sustain it, unless the examiner subsequently withdrew the
rejection in the examiner’s answer.”).

35 U.S.C. § 101
We disagree with Appellant’s arguments. To the extent consistent
with our analysis below, we adopt the Examiner’s findings and conclusions
in (i) the action from which this appeal is taken and (ii) the Answer.
The Examiner rejects the claims under 35 U.S.C. § 101 because they
are directed to patent-ineligible subject matter. See Final Act. 12–15; Ans.
5–19. In particular, the Examiner concludes the claims are directed to a
fundamental economic practice. See Final Act. 13; Ans. 8, 12. The
Examiner determines the claims do not identify an inventive concept to
transform the claims into a patent-eligible application. See Final Act. 13–15;
Ans. 8–9, 12–19. Appellant argues the Examiner erred. See Appeal Br. 5–
20; Reply Br. 1–8.
Appellant has not persuaded us of error.

Legal Principles
Section 101 of the Patent Act provides “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor, subject to the conditions and requirements of this
title.” 35 U.S.C. § 101. 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. Pty.
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Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation marks
and citation omitted).
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,
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 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
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
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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.
In 2019, the PTO published revised guidance on the application of
§ 101. USPTO’s 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY
GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019); Manual of Patent Examining
Procedure (9th ed. Rev. 10.2019, June 2020) (MPEP) §§ 2106.03–
2106.07(c) (“Guidance”). Under the instruction set forth in the 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) (Step 2A, Prong 1); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(9th ed. Rev. 10.2019, June 2020) (Step 2A, Prong 2).
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. (Step 2B.)
See Guidance, 84 Fed. Reg. at 54–56; MPEP §§ 2106.04–05.
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Step 2A, Prong 1
Turning to Step 2A, Prong 1 of the Guidance (Alice step one), claim 1
(with emphases) recites:
1. A system for generating an improved dynamic
graphical user interface (GUI), the system comprising:
an electronic exchange server configured to continuously
receive live market data;
the electronic exchange server comprising a processor
and a non-transitory computer-readable storage medium having
computer-readable program code portions stored therein,
wherein the computer-readable program code portions, when
executed, cause the electronic exchange server to:
generate, by the processor, a graphical user
interface (GUI) comprising a plurality of dedicated areas
comprising at least one input area for receiving input
and at least one dedicated display area for displaying
one or more graphic indicators;
receive, via the at least one input area of the GUI,
input from at least one user device, the input comprising
data defining one or more of a pricing parameter, a
proposed order price, and one or more proposed trades;
determine, by the processor, a theoretical price
based on one or more of the live market data, the pricing
parameter, and the proposed order price;
generate, by the processor, a theoretical price
indicator associated with the determined theoretical
price;
generate, by the processor, one or more market
data indicators associated with the one or more proposed
trades, the one or more market data indicators
comprising a dynamic bar that continually moves within
the at least one dedicated area relative to the
theoretical price indicator based on fluctuations in the
live market data;
display, within the at least one dedicated display
area of the GUI, the theoretical price indicator;
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display, within the at least one dedicated display
area of the GUI, the one or more market data indicators;
determine, by the processor in real-time,
fluctuations in the live market data; and
in response to the determined fluctuations,
automatically and continuously move the dynamic bar
relative to the theoretical price indicator, such that a
distance between the dynamic bar and the theoretical
price indicator represents a change in profitability of
at least one of the one or more proposed trades in real-
time.6

All of the italicized limitations are associated with facilitating trading
by assessing a proposed trade’s potential profitability based on monitored
pricing and market information. For example, “continuously receive live
market data,” “generate . . . comprising a plurality of dedicated areas
comprising at least one input area for receiving input and at least
one dedicated display area for displaying one or more graphic indicators,”
and “receive, via the at least one input area . . . input from . . ., the input
comprising data defining one or more of a pricing parameter, a
proposed order price, and one or more proposed trades” facilitate trading by
receiving and displaying information associated with at least one proposed
trade.
Further, the limitations of “determine . . . a theoretical price based on
one or more of the live market data, the pricing parameter, and the proposed
order price” and “generate . . . a theoretical price indicator associated with

6 We select claim 1 as the representative claim, and group the remaining
claims accordingly under 37 C.F.R. § 41.37(c)(1)(iv) (“[T]he failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.”).
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the determined theoretical price” facilitate trading by determining a
theoretical price based on live market data, the pricing parameter, and/or the
proposed order price, and generating an associated theoretical price
indicator.
In addition, the limitations of
generate . . . one or more market data indicators
associated with the one or more proposed trades, the one or
more market data indicators comprising a dynamic bar that . . .
moves within the at least one dedicated area relative to the
theoretical price indicator based on fluctuations in the live
market data;
display, within the at least one dedicated display area of
. . ., the theoretical price indicator;
display, within the at least one dedicated display area . . .
the one or more market data indicators,
determine . . . fluctuations in the live market data; and
in response to the determined fluctuations, . . . move the
dynamic bar relative to the theoretical price indicator, such that
a distance between the dynamic bar and the theoretical price
indicator represents a change in profitability of at least one of
the one or more proposed trades

facilitate trading by displaying the theoretical price indicator and market
data indicators, determining fluctuations of market data, and generating
market data indicators including a dynamic bar that moves to reflect
profitability change of at least one proposed trade, based on market
fluctuations. With respect to the claimed “dynamic bar,” a person could
simply draw such a bar on a piece of paper based on the data. Then, the
person could simply redraw the “dynamic bar” using updated data. As a
result, the “dynamic bar” would have a different length based on the updated
data and, therefore, “move” with respect to the original “dynamic bar.” See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372–73 (Fed.
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Cir. 2011) (“All of claim 3’s method steps can be performed in the human
mind, or by a human using a pen and paper. . . . Such a method that can be
performed by human thought alone is merely an abstract idea and is not
patent-eligible under § 101.”); Synopsys, Inc. v. Mentor Graphics Corp., 839
F.3d 1138, 1146 (Fed. Cir. 2016) (“[W]e continue to ‘treat[] 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.’” (citation omitted)).
Our determination is supported by the Specification, which describes
the need to facilitate trading by assessing a proposed trade’s potential
profitability based on monitored pricing and market information:
[0001] This disclosure is generally related to systems and
apparatus for receiving and processing trade orders and more
particularly to calculating and visually displaying the
profitability and risk profile of a proposed trade to facilitate
processing of a trade order.
[0002] Recent developments in derivatives trading have
introduced a variety of complex trading possibilities for
investors. The complexity of the financial instruments currently
traded on the modern markets can make it difficult for an
investor to make correct trading decisions. Currently, the
available trading systems only provide a limited amount of
information to the traders, such as the current market bid/ask of
a financial asset. However, this information is often insufficient
for informed trading decision-making.
[0003] Consequently, it is highly desirable to have a new type
of a trade-processing system and method that would make it
possible to evaluate the proposed trade by providing an
investor with up-to-date profitability and delta risk information
in a format that is easy to comprehend and that would enable
the investor to make intelligent trading decisions.

Spec. ¶¶ 1–3 (emphases added).
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Because facilitating trading is a fundamental economic practice
(Guidance, Step 2A, Prong 1 (Groupings of Abstract Ideas)), we conclude
claim 1 recites a fundamental economic practice, which is one certain
method of organizing human activity identified in the Guidance, and thus an
abstract idea.
Appellant cites Example 37 (claim 2) of the supplemental material
accompanying the Guidance (“Supp. 2019 PEG”; available at
https://www.uspto.gov/sites/default/files/documents/101_examples_37to42_
20190107.pdf). See Appeal Br. 8–9; Reply Br. 4–5. However, Appellant
does not persuasively explain why that example is applicable here. Example
37 (claim 2) recites in part:
determining the amount of use of each icon using a processor
that tracks how much memory has been allocated to each
application associated with each icon over a predetermined
period of time.

Supp. 2019 PEG 3. According to the USPTO,
the claimed step of determining the amount of use of each icon
by tracking how much memory has been allocated to each
application associated with each icon over a predetermined
period of time is not practically performed in the human mind,
at least because it requires a processor accessing computer
memory indicative of application usage. Further, the claim
does not recite any method of organizing human activity, such
as a fundamental economic concept . . . [and] does not recite a
mathematical relationship, formula, or calculation.

Supp. 2019 PEG 3–4.
Unlike Example 37 (claim 2), the pending claim does not “track[] how
much memory has been allocated to each application associated with each
icon over a predetermined period of time.” Nor does it track similar
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computer activities. To the contrary, the pending claim manipulates trading
data.
Further, unlike Example 37 (claim 2), which does not recite “any
method of organizing human activity,” the pending claim recites a method of
organizing human activity (discussed above). Therefore, Example 37 (claim
2) is inapplicable here.

Step 2A, Prong 2
Turning to Step 2A, Prong 2 of the Guidance, contrary to Appellant’s
assertions (Appeal Br. 9–18; Reply Br. 5–7), Appellant has not shown the
additional elements integrate the judicial exception into a practical
application.
Appellant’s arguments that claim 1 provides “a specific improvement
over prior electronic systems” (Reply Br. 7) and the limitations “are clearly
technological in nature and are certainly directed to a technological
advancement and improvement that squarely and exclusively falls into the
realm of computer technology” (Appeal Br. 7) are unpersuasive. According
to the Specification and Appellant, the purpose of the claimed invention is to
“make it possible to evaluate [a] proposed trade by providing an investor
with up-to-date profitability and delta risk information in a format that is
easy to comprehend and that would enable the investor to make intelligent
trading decisions,” such as when placing a trade order. Spec. ¶ 3; see also
Appeal Br. 4, 10–11; Reply Br. 7. However, “new arrangement of generic
information that assists traders in processing information more quickly” does
not “improve the functioning of the computer . . . or solve any technological
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problem.” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed.
Cir. 2019).
Further, contrary to Appellant’s assertion about “computer-centric”
elements (Appeal Br. 6; Reply Br. 3), the Specification confirms the
additional elements “electronic exchange server” (which includes the
claimed “processor”), “graphical user interface,” and “use device” are
conventional computing devices or interfaces. See Spec. ¶ 12 (“The term
‘electronic exchange server’ shall refer to any type of a computing device.
The electronic exchange server may comprise one or more processors
configured to execute instructions stored in a non-transitory memory.”);
Spec. ¶ 38 (“The graphical user interface may be configured to be displayed
on any type of a display device, including a computer monitor, a smart-
phone screen, a laptop screen or any other type of device capable of
displaying images.”); Spec. ¶ 17 (“The term ‘user interface’ shall refer to
any suitable type of device, connection, display and/or system through
which information may be conveyed to a user, such as, without limitation, a
monitor, a computer, a graphical user interface, a terminal, a screen, a
telephone, a personal digital assistant, a smartphone, or an interactive
television.”); Spec. ¶ 71 (“The user devices 215a, 215b, 215c may comprise
a desktop computer 210a, a laptop 210b a smartphone 210c or any other user
device known in the art.”).
Instead of providing “an improved user interface” (Appeal Br. 10),
claim 1 recites displaying different information content in a known user
interface. See claim 1. Our determination is consistent with the
Specification, which describes presenting different information in order to
facilitate trading. See, e.g., Spec. ¶¶ 2–6. Appellant has not persuasively
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explained why displaying different information content in a known user
interface renders the claims patent eligible under Alice. See Trading Techs.,
921 F.3d at 1093 (“The fact that this is a ‘computer-based method’ does not
render the claims non-abstract. The specification indicates the claimed GUI
is displayed on any computing device. As a general rule, ‘the collection,
organization, and display of two sets of information on a generic display
device is abstract.’” (citation omitted)).
Regarding the technique of “automatically and continuously”
updating and displaying information “in real-time” argued by Appellant
(Appeal Br. 8–10; Reply Br. 4–5), our reviewing court has declared:
While the claimed system and method certainly purport to
accelerate the process of analyzing audit log data, the speed
increase comes from the capabilities of a general-purpose
computer, rather than the patented method itself. See Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687
F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the required
calculations could be performed more efficiently via a computer
does not materially alter the patent eligibility of the claimed
subject matter.”).

FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir.
2016) (emphases added).
Applying this reasoning to claim 1, we similarly find the technique of
“automatically and continuously” updating and displaying information in
“real-time” comes from the capabilities of general-purpose computers (the
recited “electronic exchange server,” “processor,” and “graphical user
interface”), rather than the claimed steps or functions. As discussed above, a
user could draw a “dynamic bar” and redraw the “dynamic bar” using
updated data, resulting in moving the dynamic bar with respect to the
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original dynamic bar. Although the user could not continually move the
“dynamic bar” in real-time as quickly as a conventional computer could,
claim 1 uses the conventional “electronic exchange server,” “processor,” and
“graphical user interface” to merely accelerate what a user could draw on a
piece of paper. As a result, similar to the claims of FairWarning, the
rejected claims “are not directed to an improvement in the way computers
operate” and “the focus of the claims is not on . . . an improvement in
computers as tools, but on certain independently abstract ideas that use
computers as tools.” FairWarning, 839 F.3d at 1095.
Consistent with FairWarning, Appellant’s arguments about
“automatically and continuously” updating and displaying information “in
real-time” (Appeal Br. 8–10; Reply Br. 4–5) are also unpersuasive under
Electric Power Group, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
2016). In that case, claim 12 of U.S. Patent 8,401,710, which “is
representative of the asserted claims,” is replete with references to real-time
data collection and visual presentation, including visuals, tables, and/or
charts. See id. at 1351–52; see also U.S. Patent 8,401,710 (illustrating
graphical representations—including bars—of real-time data in Figures 17,
19, 21, 23, 25, 26, 27, 29, 31, and 34–38 and their corresponding
descriptions).
According to the Electric Power court,
[t]he claims in this case specify what information in the power-
grid field it is desirable to gather, analyze, and display,
including in “real time”; but they do not include any
requirement for performing the claimed functions of gathering,
analyzing, and displaying in real time by use of anything but
entirely conventional, generic technology. The claims therefore
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do not state an arguably inventive concept in the realm of
application of the information-based abstract ideas.

Elec. Power, 830 F.3d at 1356 (emphases added).
Similar to the Electric Power claims that recite “automatically”
analyzing data and providing visual presentation (including visuals, tables,
and/or charts) in “real-time,” claim 1 recites manipulating and displaying
data “automatically” and “in real-time.” Elec. Power, 830 F.3d at 1351–52;
claim 1. Similar to the Electric Power claims, claim 1 is patent ineligible
because it does not “include any requirement for performing the claimed
functions of gathering, analyzing, and displaying in real time by use of
anything but entirely conventional, generic technology.” Electric Power,
830 F.3d at 1356; see also CardioNet, LLC v. InfoBionic, Inc., 816 F. App’x
471, 473, 476 (Fed. Cir. 2020) (unpublished) (“displaying data, including
displaying [dynamic bars to pictographically present information], is not the
sort of ‘improvement[] to existing technological processes and computer
technology’ capable of establishing the eligibility of computer-implemented
method claims”) (citation omitted).
In addition, Appellant’s argument about “millions of transactions”
(Appeal Br. 8; Reply Br. 3) is unpersuasive, as Appellant has not shown that
argument is commensurate with the scope of claim 1. In any event, similar
to the discussions above, the ability to handle data volume comes from the
capabilities of general-purpose computers (the recited “electronic exchange
server,” “processor,” and “graphical user interface”), which do not constitute
any technology improvement.
Therefore, we conclude claim 1 is directed to facilitating trading by
assessing a proposed trade’s potential profitability based on monitored
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pricing and market information—an abstract idea. See Trading Techs., 921
F.3d at 1093 (holding “graphing bids and offers to assist a trader to make an
order” constitutes an abstract idea); Synopsys, 839 F.3d at 1151 (“a claim for
a new abstract idea is still an abstract idea”); Genetic Techs. Ltd. v. Merial
L.L.C., 818 F.3d 1369, 1376 (Fed. Cir. 2016) (“under the Mayo/Alice
framework, a claim directed to a newly discovered law of nature (or natural
phenomenon or abstract idea) cannot rely on the novelty of that discovery
for the inventive concept necessary for patent eligibility”) (citations
omitted).
Appellant’s arguments about Example 37 (claim 1) (Appeal Br. 11–
12; Reply Br. 6–7) are unpersuasive. In particular, Appellant’s assertion that
according to that example, “an improvement in ‘displaying trade
information’ has already been deemed a technological improvement that
renders a claim statutory” (Appeal Br. 11) plainly contradicts the record.
According to the USPTO:
The claim as a whole integrates the mental process into a
practical application. Specifically, the additional elements
recite a specific manner of automatically displaying icons to the
user based on usage which provides a specific improvement
over prior systems, resulting in an improved user interface for
electronic devices.

Supp. 2019 PEG 2–3.
Unlike Example 37 (claim 1), the pending claim 1 does not
recite[] the combination of additional elements of receiving, via
a GUI, a user selection to organize each icon based on the
amount of use of each icon, a processor for performing the
determining step, and automatically moving the most used
icons to a position on the GUI closest to the start icon of the
computer system based on the determined amount of use.
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Supp. 2019 PEG 2. Nor does the pending claim 1 recite similar combination
of additional elements.
Further, unlike Example 37 (claim 1), the pending claim 1 does not
provide “a specific manner of automatically displaying icons to the user
based on usage [of each icon]” or provide similar technology improvements.
Id. To the contrary, the pending claim 1 manipulates and displays trading
data. Therefore, that example is inapplicable here.
Contrary to Appellant’s assertion (Appeal Br. 17), the rejected claims
are unlike the claims in Enfish. In Enfish, the court determined:
The . . . patents are directed to an innovative logical
model for a computer database. . . . A logical model generally
results in the creation of particular tables of data, but it does not
describe how the bits and bytes of those tables are arranged in
physical memory devices. Contrary to conventional logical
models, the patented logical model includes all data entities in
a single table, with column definitions provided by rows in that
same table. The patents describe this as the “self-referential”
property of the database.

Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1330 (Fed. Cir. 2016)
(emphases added).
[T]he plain focus of the claims is 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] are directed to a specific improvement
to the way computers operate, embodied in the self-referential
table.

Id. at 1336.
Unlike the claims of Enfish, claim 1 is not “directed to an innovative
logical model for a computer database [that] includes all data entities in a
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single table, with column definitions provided by rows in that same table” or
similar improvements. Id. at 1330. Instead, as discussed above, claim 1 is
directed to an abstract idea that merely uses computers as tools to
manipulate information in a known user interface.
Appellant also cites BASCOM Global Internet Services, Inc. v. AT&T
Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) (Appeal Br. 17), but does not
persuasively explain why that case is similar to the present case. In
BASCOM, the court determined that at the pleading stage and construed in
favor of the nonmovant,
[t]he inventive concept described and claimed . . . is the
installation of a filtering tool at a specific location, remote from
the end-users, with customizable filtering features specific to
each end user. This design gives the filtering tool both the
benefits of a filter on a local computer and the benefits of a
filter on the ISP server. BASCOM explains that the inventive
concept rests on taking advantage of the ability of at least some
ISPs to identify individual accounts that communicate with the
ISP server, and to associate a request for Internet content with a
specific individual account.

Id. at 1350 (emphasis added).
Unlike the claims of BASCOM, claim 1 is not directed to an
“installation of a filtering tool at a specific location, remote from the end-
users, with customizable filtering features specific to each end user” or
similar improvements. Id. at 1350. Nor does claim 1 “give[] the filtering
tool both the benefits of a filter on a local computer and the benefits of a
filter on the ISP server” or provide similar benefits. Id.
In addition, contrary to Appellant’s assertion (Appeal Br. 17), Amdocs
(Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016), is
inapplicable here. In Amdocs, the court determined:
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[C]laim 1 of the ’065 patent is tied to a specific structure of
various components (network devices, gatherers, ISMs, a
central event manager, a central database, a user interface
server, and terminals or clients). It is narrowly drawn to not
preempt any and all generic enhancement of data in a similar
system, and does not merely combine the components in a
generic manner, but instead purposefully arranges the
components in a distributed architecture to achieve a
technological solution to a technological problem specific to
computer networks.
. . . [C]laim 1 of the ’065 patent depends upon a specific
enhancing limitation that necessarily incorporates the
invention’s distributed architecture—an architecture providing
a technological solution to a technological problem. This
provides the requisite ‘something more’ than the performance
of “well-understood, routine, [and] conventional activities
previously known to the industry.”

Amdocs, 841 F.3d at 1301 (citation omitted, emphases added).
Amdocs is inapplicable here because unlike the claims of Amdocs,
claim 1 does not “necessarily incorporate[] the invention’s distributed
architecture—an architecture providing a technological solution to a
technological problem” or provide similar technological solutions. Id. at
1301. To the contrary and as discussed above, claim 1 is directed to a new
abstract idea.
As a result, we conclude claim 1 does not recite additional elements
that integrate the judicial exception into a practical application. See
Guidance, Step 2A, Prong 2.

Step 2B
Turning to Step 2B of the Guidance (Alice step two), Appellant argues
the claims are patent eligible under Berkheimer v. HP Inc., 881 F.3d 1360,
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1368 (Fed. Cir. 2018). See Appeal Br. 13–15, 18–20; Reply Br. 7–8. In
particular, Appellant contends “the Examiner has plainly failed to provide
any facts or evidence” required by Berkheimer. Appeal Br. 19; Reply Br. 8
(emphases omitted). Appellant argues the “claim elements cannot possibly
be construed as well-understood, routine, and conventional.” Appeal Br. 15.
We disagree.
First, Appellant’ argument that “the Examiner has plainly failed to
provide any facts or evidence” required by Berkheimer (Appeal Br. 19;
Reply Br. 8 (emphases omitted)) contradicts the record. See, e.g., Ans. 8–9
(citing paragraphs 12, 17, and 21 of the Specification to show the claimed
“electronic exchange server,” “user interface,” and “electronic exchange”
were well-understood, routine, and conventional to a skilled artisan).
Second, Appellant’s argument about additional elements (Appeal Br.
13–14) are unpersuasive, as Appellant simply lists all of the steps, but the
listing of such limitations does not qualify as the “additional” elements of
the claim. Appellant also bolds many limitations (Appeal Br. 13–14), but
the majority of such bolded limitation do not qualify as the “additional”
elements of the claim. See BSG Tech LLC v. BuySeasons, Inc., 899 F.3d
1281, 1290 (Fed. Cir. 2018) (explaining the Alice “Court only assessed
whether the claim limitations other than the invention’s use of the ineligible
concept to which it was directed were well-understood, routine and
conventional” and “did not consider whether it was well-understood, routine,
and conventional to execute the claimed intermediated settlement method on
a generic computer”) (emphasis added).
As discussed above, all of the italicized limitations are part of the
abstract idea. Among the limitations listed by Appellant (Appeal Br. 13–
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14), “by the processor,” “a graphical user interface (GUI),” “the GUI,”
“continually,” “in real-time,” and “automatically and continuously”
constitute the additional elements of claim 1. As discussed above with
respect to Step 2A, Prong 2, all of such elements were well-understood,
routine, or conventional in the field. Further, Appellant’s arguments are
unpersuasive, as Appellant does not provide sufficient objective evidence to
support the argument that the additional elements were not well-understood,
routine, or conventional in the field. See In re Geisler, 116 F.3d 1465, 1470
(Fed. Cir. 1997) (“attorney argument [is] not the kind of factual evidence
that is required to rebut a prima facie case of obviousness”); Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977) (“Argument of counsel cannot
take the place of evidence lacking in the record.”).
Finally, Appellant argues claim 1 is patent eligible because the
Examiner issued a double patenting rejection based on the claims of
Wender, and Wender was issued as a patent (Appeal Br. 20). That argument
is unpersuasive, because the issue of whether the claims of Wender are
patent eligible is not before us, and that issue does not affect our analysis
here.
As a result, Appellant has not persuaded us the Examiner erred with
respect to the Guidance’s Step 2B analysis. See Guidance, Step 2B.
Because Appellant has not persuaded us the Examiner erred, we
sustain the Examiner’s rejection of claim 1 under 35 U.S.C. § 101.
For similar reasons, we sustain the Examiner’s rejection of claims 2,
3, 6, 7, 9, 10, 12–16, 18–26, 28, and 29 under 35 U.S.C. § 101, as Appellant
does not advance separate substantive arguments about those claims.

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DECISION
We affirm the Examiner’s decision rejecting claims 1–3, 6, 7, 9, 10,
12–16, 18–26, 28, and 29 under the non-statutory double patenting doctrine.
We affirm the Examiner’s decision rejecting claims 1–3, 6, 7, 9, 10,
12–16, 18–26, 28, and 29 under 35 U.S.C. § 101.
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 7, 9,
10, 12–16,
18–26, 28,
29
Nonstatutory
Double Patenting
US 10,282,783 B2
1–3, 6, 7, 9,
10, 12–16,
18–26, 28, 29

1–3, 6, 7, 9,
10, 12–16,
18–26, 28,
29
101 Eligibility 1–3, 6, 7, 9,
10, 12–16,
18–26, 28, 29

Overall
Outcome
1–3, 6, 7, 9,
10, 12–16,
18–26, 28, 29

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).

AFFIRMED