Jason Mast

Patent Trials and Appeals Board

Aug 2, 2019

12885122 - (D) (P.T.A.B. Aug. 2, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/885,122 09/17/2010 Jason Mast SVL920100046US1 8061
63675 7590 08/02/2019
PATTERSON & SHERIDAN, LLP/IBM SVL
24 Greenway Plaza
SUITE 1600
HOUSTON, TX 77046-2472
EXAMINER
SHAIKH, MOHAMMAD Z
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
08/02/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
PAIR_eofficeaction@pattersonsheridan.com
PSDocketing@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JASON MAST
____________________

Appeal 2018-0052771
Application 12/885,122
Technology Center 3600
____________________

Before MURRIEL E. CRAWFORD, PHILIP J. HOFFMANN, and
BRADLEY B. BAYAT, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
This is an appeal from the final rejection of claims 22–42. The
“invention generally relate[s] to techniques for processing financial market
data.” Spec. ¶ 25. Claim 22, the only pending independent claim on
appeal, is illustrative:

1 The Appellant identifies International Business Machines Corp. as the real
party in interest. Appeal Br. 3.
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22. A system of data stream processing based on a distributed
computing framework that includes a feed handler, a middleware
application, and a front-end application, the system comprising:
a plurality of computer processors operatively connected
to one another; and
a plurality of memory units storing program code
executable on the plurality of computer processors to perform an
operation for data stream processing based on the distributed
computing framework, the program code comprising:
the feed handler, which is configured to:
retrieve, over a network connection, a snapshot feed
including data describing a plurality of instruments;
parse the snapshot feed data;
convert the snapshot feed data to a plurality of feed
messages; and
generate supplemental data for each of the plurality of feed
messages, the supplemental data describing an underlying
transaction in the feed message wherein the underlying
transaction includes one or more elements for an instrument of
the plurality of instruments in the snapshot feed;
the middleware application, which is configured to:
receive the feed messages and the supplemental data from
the feed handler; and
store the received feed messages and the supplemental
data in a data store; and
the front-end application, which is configured to:
retrieve the feed messages and the supplemental data from
the data store via an interface to the middleware application; and
output the feed messages and the supplemental data to a
user;
wherein the feed handler is further configured to output
the feed messages and the supplemental data for each of the feed
messages to the middleware application;
wherein the feed messages and the supplemental data are
accessible to the user via the front-end application in parallel to
the feed messages and the supplemental data being stored in the
data store;
wherein the feed handler generates the supplemental data
for each of the plurality of feed messages by:
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parsing the feed message for the one or more elements;
identifying any errors the elements based on the parsing;
and
including, in the supplemental data, an indication of any
errors identified in the elements.
The Examiner rejected claims 22–42 under 35 U.S.C. § 101 as
directed to ineligible subject matter in the form of abstract ideas.
We AFFIRM.

ANALYSIS
An invention is patent-eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
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
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economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 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
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concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”). Under 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); and
(2) additional elements that integrate the judicial exception into
a practical application (see Manual of Patent Examining
Procedure (“MPEP”) § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not integrate
that exception into a practical application, do we then look to whether
the claim:
(3) adds a specific limitation beyond the judicial exception that
is not “well-understood, routine, conventional” in the field (see
MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
See Guidance.
The Examiner finds the “claims are directed to the abstract idea of
processing data from a data feed.” Final Act. 9. This is consistent with the
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Appellant’s description of the invention, which states that “[e]mbodiments
of the present invention generally relate to techniques for processing
financial market data.” Spec. ¶ 25. The Appellant further describes, in the
background, that “usually a front-end feed handler application is used to
retrieve the data from the various snapshot feeds and to transmit them to the
consumer's middleware.” Id. ¶ 4.
The Appellant, however, asserts that “[j]ust like the claims in McRO,”
because claim 22 “limits itself to specific features in a way that does not
preempt other approaches of achieving desired results, the instant claim is
not abstract, and as such, no further analysis is required under Part 2 of the
Alice test.” Appeal Br. 38–39; see also Reply Br. 2–3. In addition, the
Appellant argues the Examiner “disregards technical recitations,” because
“the recited system solves the technological problem of facilitating error
detection and logging for data streams” with the claimed “generating [of]
supplemental data.” Appeal Br. 39; see also Reply Br. 3–4. We are not
persuaded by the Appellant’s arguments, because we agree with the
Examiner that claim 22 is directed to an abstract idea.
Claim 22 recites a system with “computer processors” and “memory
units” that are programmed with three separate software applications, a
“feed handler,” a “front-end application,” and “middleware.” The functions
of each as recited as follows. According to claim 22, the “feed handler . . . is
configured to”:
retrieve . . . feed data . . . ;
parse the . . . feed data;
convert the . . . feed data to . . . messages;
generate supplemental data for each of the . . . messages, . . . by:
parsing the [] message . . .;
identifying any errors . . . ;
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includ[e], in the supplemental data, an indication of any errors
identified . . . . [and],
output the . . . messages and the supplemental data . . . to the
middleware application;
The “middleware application . . . is configured to”:
receive the [] messages and the supplemental data from the feed
handler; and
store the received feed messages and the supplemental data . . . .
The “front-end application . . . is configured to”:
retrieve the feed messages and the supplemental data . . . ; and
output the feed messages and the supplemental data to a user.

The data received is described in claim 22 as “a snapshot feed
including data describing a plurality of instruments.” The “supplemental
data describ[es] an underlying transaction in the feed message wherein the
underlying transaction includes one or more elements for an instrument of
the plurality of instruments in the snapshot feed.”
The step, performed by the “feed handler,” to “convert the snapshot
feed data to a plurality of feed messages” is asserted as being supported in
the Specification, according to the Appellant, at paragraphs 27 and 35–38.
Appeal Br. 5. Paragraph 27 describes an example using “Financial
Information eXchange (FIX) protocol” messages, such as those used by the
New York Stock Exchange and NASDAQ exchange. Spec. ¶ 26–27. In this
example, the received “snapshot data may be provided as a series of message
parts, completed by an ‘end of snapshot’ indicator.” Spec. ¶ 35. The
application searches for various data elements in the message parts,
depending on the type of messages received. Spec. ¶¶ 35–36. In this
example, this information could be price, whether the data represents a bid
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or an offer, the number of shares, the ID of a market maker, or other
information. Spec. ¶ 37. We thus construe the converting to be parsing and
extracting data from received feed data.
The next step performed by the “feed handler,” i.e. “generate
supplemental data for each of the plurality of feed messages, the
supplemental data describing an underlying transaction in the feed message
wherein the underlying transaction includes one or more elements for an
instrument of the plurality of instruments in the snapshot feed,” Appellant
alleges as being supported at paragraphs 30–32 of the Specification. Appeal
Br. 5. The Specification describes that in “traditional processing,” data
received “includes applying this incoming data directly to the published
output.” Spec. ¶ 30. The claimed invention, however, “analyzes the
snapshot data in order to determine value/added information,” such as totals
values from summing up amounts in several portions of feed data. Spec.
¶¶ 30–31. We construe the “generate” step as adding other data.
The claim calls for the feed handler to identify any errors in the
elements based on the parsing. As far as this action, the Specification only
describes that “price level continuity may be verified” by looking for “price
gaps,” and “checking for crossed books,” by comparing prices. Spec ¶¶ 40–
41 (cited at Appeal Br. 6). We construe this step as one that performs the
comparison of data.
The claim thus parses received data, extracts data, adds additional
data, compares data, and outputs the data and additional data, by a “feed
handler” application; stores the data, by a “middleware application”; and
sends data, by the “front-end application.” Thus, as a whole, the claim
receives, processes, stores, and sends data.
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The recited steps performed by the software are one of several
abstract concepts relating to performance of financial transactions, because
they may describe processing and distributing data about financial
transactions. See MPEP § 2106.04(a)(2)(I)(A).
In addition, the claim bears similarity to the claims in Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307 (Fed. Cir. 2016), which
involved receiving, screening, and distributing email. Id. at 1316. Because
the claims examine data for problems, they are also similar to claims in
FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089 (Fed. Cir. 2016).
The patentee in FairWarning claimed a system and method of detecting
fraud and/or misuse in a computer environment. The method included the
steps of collecting information regarding accesses of a patient’s personal
health information, analyzing the information according to one of several
rules (i.e., related to accesses in excess of a specific volume, accesses during
a pre-determined time interval, or accesses by a specific user) to determine if
the activity indicates improper access, and providing notification if it
determines that improper access has occurred. Id. at 1092. As such, the
claim is directed to abstract “[c]oncepts relating to tracking or organizing
information.” See MPEP § 2106.04(a)(2)(II)(D).
Further, the claim is directed to “[c]oncepts relating to organizing or
analyzing information in a way that can be performed mentally or is
analogous to human mental work.” See MPEP § 2106.04(a)(2)(III)(B).
Like claims for collecting, displaying, and manipulating data, in Intellectual
Ventures, and claims for collecting information, analyzing it, and displaying
certain results of the collection and analysis, in Electric Power Group, LLC
v. Alstom, S.A., 830 F.3d 1350, 1351 (Fed. Cir. 2016), the claim here
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involves steps that a human can perform mentally. For example, a human
can receive papers containing data about financial transactions, parse and
extract data about the transactions from the papers, calculate totals, averages,
or maximums, compare the papers to standard form papers to locate
irregularities, repackage the data from the papers into different messages,
and store and forward the new messages with the data extracted and
determined.
Setting aside, for the moment, the claimed “computer processors
operatively connected to one another; and a plurality of memory units
storing program code executable on the plurality of computer processors,”
the claimed steps amount to no more than abstract ideas, for the reasons we
set forth above.
Addressing directly the claimed computer processors and memory, we
find they do not alter the conclusion that claim 22 is directed to abstract
ideas. See, for example, Credit Acceptance Corp. v. Westlake Services, 859
F.3d 1044, 1055 (Fed. Cir. 2017) (“Our prior cases have made clear that
mere automation of manual processes using generic computers does not
constitute a patentable improvement in computer technology.”); see also
Bancorp Services, L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687
F.3d 1266, 1278 (Fed. Cir. 2012) (A computer “employed only for its most
basic function . . . does not impose meaningful limits on the scope of those
claims.”).
In Prong Two of the Revised Step 2A, we are directed to evaluate a
claim directed to a judicial exception, to determine whether it integrates the
judicial exception into a practical application. Guidance, at 54.
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The method performed by the computer processors in claim 22 does
not improve the underlying computer because any processor can be used to
execute the claimed method. See Spec. ¶ 21 (“computer program
instructions may also be loaded onto a computer, other programmable data
processing apparatus, or other devices to cause a series of operational steps
to be performed on the computer, other programmable data processing
apparatus, or other devices”). In addition, the method is directed to
“techniques for processing financial market data streams” (Spec. ¶ 5), and as
such the claimed method does not improve another technology. See MPEP
§ 2106.05(a). Because a particular computer is not required, the claim also
does not define or rely on a “particular machine.” See MPEP § 2106.05(b).
Further, the method does not transform matter. See MPEP § 2106.05(c).
Instead, the claim merely receives, processes, stores, and sends data. As
such, the method has no other meaningful limitations (see MPEP
§ 2106.05(e)), and thus merely recites instructions to execute the abstract
idea on a computer, merely using the computer as a tool (see MPEP
§ 2106.05(f)).
Claim 22 thus does not integrate the abstract idea into a practical
application. Guidance at 55.
In evaluating the claim under Prong Two of Revised Step 2A of the
Guidance, is it clear the only elements in the claim, beyond the abstract idea
of receiving, processing, storing and sending data embodied in software, are
a plurality of computer processors operatively connected to one another, and
a plurality of memory units. However, if a claim, under its broadest
reasonable interpretation, covers performance in the mind but for the
recitation of generic computer components, then it is still in the mental
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processes category unless the claim cannot practically be performed in the
mind. See Intellectual Ventures, 838 F.3d at 1318. Further, the operations
of storing, analyzing, receiving, and writing data are primitive computer
operations found in any computer system. See In re Katz Interactive Call
Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011). The
computer processors and memory, and operations undertaken by the
software operating on them, are basic computer functions, on general
purpose computer hardware. See Spec. ¶ 21. Thus, the only additional
elements beyond the abstract idea are well understood, routine, and
conventional. See MPEP ¶ 2106.05(d); Guidance at 56.
The claim thus is directed to an abstract idea and recites only well-
understood, routine, and conventional elements beyond the abstract idea.
We are not persuaded by the Appellant’s argument that, even if
abstract, “the recited system solves the technological problem of facilitating
error detection and logging for data streams.” Appeal Br. 39 (emphasis
added); see also Reply Br. 7. The Appellant points out the claim includes
“identifying any errors.” Id. at 40. But, the Appellant does not identify, in
the Specification or arguments, what problem is being solved. For example,
the Specification ends the background section by explaining that, typically,
“front-end feed handlers use a data structure that can hold a copy of the
incoming data, and transmit that data structure to middleware systems
configured to provide that information to the interested consumers within the
organization,” apparently without any added error indicators. Spec. ¶ 4–5.
But, merely adding error information does not appear to solve any problem
identified as being “technological.” Instead, this appears merely to provide
information that may increase the accuracy or trustworthiness of data, which
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may solve a business problem arising from inaccurate or untrusted data, not
a technological problem.
We are not persuaded by the Appellant’s argument that the claim
provides “something more” than an abstract idea, because the claim provides
“unconventional steps that confine the abstract idea to a particular, useful
application — i.e., the application of error detection and logging for data
streams.” Appeal Br. 40.
However, even with added error detection and logging, the claim is
still directed to the abstract idea of processing data from a data feed. Also,
even unconventional abstract ideas are still ineligible for patenting. See SAP
America, Inc. v. Investpic, LLC, 890 F.3d 1016, 1018 (Fed. Cir. 2018).
“What is needed is an inventive concept in the non-abstract application
realm.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1168 (Fed. Cir.
2018).
We also are unpersuaded that the claims provide “something more”
that transforms the abstract idea into eligible subject matter, by the
Appellant’s argument that the three software “components nevertheless
operate in an unconventional manner to achieve an improvement in
computer functionality, just like the distributed architecture in Amdocs.”
Appeal Br. 41.
In Amdocs2, the court held that “[claim 1] is eligible under step two
because it contains a sufficient ‘inventive concept.”’ Amdocs, 841 F.3d
at 1300. The claim at issue recited “computer code for using the accounting
information with which the first network accounting record is correlated to

2 Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir.
2016) (hereinafter “Amdocs”).
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enhance the first network accounting record.” Id. The court explained that
the “claim entails an unconventional technological solution (enhancing data
in a distributed fashion) to a technological problem (massive record flows
[that] previously required massive databases).” Id. The court noted that,
although the solution requires generic computer components, “the claim’s
enhancing limitation necessarily requires that these generic components
operate in an unconventional manner to achieve an improvement in
computer functionality.” Id. at 1300–01. When determining that the claim
was patent eligible, the Federal Circuit explained that the “enhancing
limitation necessarily involves the arguably generic gatherers, network
devices, and other components working in an unconventional distributed
fashion to solve a particular technological problem.” Id. at 1301. The court
distinguished the claim from the claims held unpatentable on the grounds
that the “enhancing limitation . . . necessarily incorporates the invention’s
distributed architecture —an architecture providing a technological solution
to a technological problem.” Id. at 1301 (citations omitted). But unlike the
generic components at issue in Amdocs, the generic components recited
here, in the Appellant’s claim 22, do not operate in an unconventional
manner to achieve an improvement in computer functionality. Instead, the
generic components in claim 22 merely receive, process, store, and send
data.
For these reasons, we agree with the Examiner that claim 22 is
directed to an abstract idea, is not integrated into a practical application, and
does not recite elements beyond the abstract idea except those that are well
understood, routine, and conventional.
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For this reason, we sustain the rejection of claim 22 under
35 U.S.C. § 101. We also sustain the rejection of dependent claims 23, 25,
27, 29, 30, 32, 33, 35, 36, and 38–42 that were not argued separately.
As to dependent claims 24, 26, 28, 31, 34, and 37, the Appellant
essentially advances exactly the same arguments, nearly verbatim, as
advanced for claim 22. See Appeal Br. 42–53. We find them unpersuasive
for the same reasons as for claim 22. We thus also affirm the rejection of
claims 24, 26, 28, 31, 34, and 37 under 35 U.S.C. § 101.

DECISION
We affirm the rejection of claims 22–42 under 35 U.S.C. § 101.
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