Intercontinental Exchange Holdings, Inc.Download PDFPatent Trials and Appeals BoardJun 25, 20212021000317 (P.T.A.B. Jun. 25, 2021) Copy Citation 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. Appeal 2021-000317 Application 14/618,067 2 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; Appeal 2021-000317 Application 14/618,067 3 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. Appeal 2021-000317 Application 14/618,067 4 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). Appeal 2021-000317 Application 14/618,067 5 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. Appeal 2021-000317 Application 14/618,067 6 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 Appeal 2021-000317 Application 14/618,067 7 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. Appeal 2021-000317 Application 14/618,067 8 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; Appeal 2021-000317 Application 14/618,067 9 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.”). Appeal 2021-000317 Application 14/618,067 10 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. Appeal 2021-000317 Application 14/618,067 11 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). Appeal 2021-000317 Application 14/618,067 12 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 Appeal 2021-000317 Application 14/618,067 13 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 Appeal 2021-000317 Application 14/618,067 14 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 Appeal 2021-000317 Application 14/618,067 15 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 Appeal 2021-000317 Application 14/618,067 16 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 Appeal 2021-000317 Application 14/618,067 17 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 Appeal 2021-000317 Application 14/618,067 18 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. Appeal 2021-000317 Application 14/618,067 19 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 Appeal 2021-000317 Application 14/618,067 20 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: Appeal 2021-000317 Application 14/618,067 21 [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, Appeal 2021-000317 Application 14/618,067 22 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– Appeal 2021-000317 Application 14/618,067 23 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. Appeal 2021-000317 Application 14/618,067 24 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 Copy with citationCopy as parenthetical citation