Joseph B. Castinado et al.

Patent Trials and Appeals Board

Sep 20, 2019

13949714 - (D) (P.T.A.B. Sep. 20, 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.
13/949,714 07/24/2013 Joseph B. Castinado 015444.0894 6822
139180 7590 09/20/2019
Baker Botts LLP/Bank of America Corporation
2001 Ross Avenue
Suite 900
Dallas, TX 75201
EXAMINER
GREGG, MARY M
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
09/20/2019 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):
ptomail1@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte JOSEPH B. CASTINADO, GREGORY G. FARR,
RICHARD H. THOMAS, and BONNIE L. DOLAN
________________

Appeal 2018-003222
Application 13/949,7141
Technology Center 3600
________________

Before ST. JOHN COURTENAY III., JASON J. CHUNG, and
JOYCE CRAIG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1–3, 5–9, 11–15, and 17–20.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
INVENTION
The invention relates “to a communication network for collecting data
and executing electronic transaction services.” Spec. 1:3–4. Claim 1 is
illustrative of the invention and is reproduced below:

1 According to Appellants, Bank of America Corporation is the real party in
interest. App. Br. 1.
2 Claims 4, 10, and 16 are cancelled. App. Br. 30, 33, 36.
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1. A system for executing electronic transaction
services, comprising:
one or more processors operable to:
access first charge information associated with
electronic transactions related to a plurality of nodes;
determine a plurality of first charge ratings for the
first charge information;
access second charge information associated with
electronic transactions related to a plurality of regulatory
authorities, wherein each regulatory authority has
authority over one or more of the plurality of nodes;
determine a plurality of second charge ratings for
the second charge information;
access a plurality of previously executed electronic
transactions associated with a user;
determine one or more transaction patterns based on
the plurality of previously executed electronic
transactions;
calculate a current cost associated with the one or
more of the plurality of previously electronic transactions
based at least in part on the first and second charge
information; and
determine, based at least in part on the first and
second charge information, one or more proposed
electronic transactions routed through two or more of the
plurality of nodes and two or more of the plurality of
authorities, wherein the one or more proposed electronic
transactions are associated with a proposed cost;
determine one or more first confidence ratings
associated with the two or more nodes and one or more
second confidence ratings associated with the two or more
authorities, wherein the first confidence rating indicates a
reliability of the first charge information and the second
confidence rating indicates a reliability of the second
charge information;
compare the proposed cost of the proposed
electronic transaction to the current cost associated with
the one or more of the plurality of previous electronic
transactions; and
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in response to the proposed cost being less than the
current cost, the one or more first confidence ratings being
above a first threshold, and the one or more second
confidence ratings being above a second threshold:
transmit an authorization request to the user
identifying the one or more proposed electronic
transactions and the proposed cost;
receive authorization from the user to execute
the proposed transaction; and
execute the proposed electronic transaction.

App. Br. 27–28 (Claims Appendix).

REJECTIONS AT ISSUE
Claims 1–3, 5–9, 11–15, and 17–20 stand rejected under 35 U.S.C.
§ 101 as being directed to patent ineligible subject matter. Final Act. 7–17.
Claims 1–3, 5–9, 11–15, and 17–20 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over the combination of Cervenka (US
2012/0271765 A1; published Oct. 25, 2012), Burger (US 2010/0145929 A1;
published June 10, 2010), and Smith (US 2006/0059087 A1; published Mar.
16, 2006). Final Act. 17–64.
ANALYSIS
I. Claims 1–3, 5–9, 11–15, and 17–20 Rejected Under 35 U.S.C. § 101
A. Legal Principles
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).
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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, 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.
(15 How.) 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 192 (“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
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said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO’s January 7, 2019 Memorandum, 2019 Revised Patent
Subject Matter Eligibility Guidance (“Memorandum”). Under that
guidance, we first look to whether the claim recites:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activity such as a fundamental economic practice, or mental
processes); and
(2) additional elements that integrate the judicial exception into a
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practical application (see 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 are not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of
generality, to the judicial exception.
See Memorandum.
B. The Examiner’s Conclusions and Appellants’ Arguments
The Examiner concludes the present claims recite fundamental
economic principles or practices, which are certain methods of organizing
human activity. Final Act. 7–17; Ans. 7, 11, 13. The Examiner also
determines the present claims do not amount to significantly more than an
abstract idea itself because the Examiner determines the abstract idea is
implemented on generic components that are well-understood, routine, and
conventional previously known to the industry. Final Act. 9, 12, 14, 17;
Ans. 14, 19.
Appellants argue the Examiner fails to provide a prima facie rejection
because the Examiner overlooks various limitations. App. Br. 14–15; Reply
Br. 3–4. Appellants argue, similar to Enfish, LLC v. Microsoft Corp., 822
F.3d 1327 (Fed. Cir. 2016) and Trading Technologies International Inc., v.
CQG, Inc., 675 F. App’x 1001 (Fed. Cir. 2017) (non-precedential), the
present claims recite an improvement in computer-related technology
because the system reduces transaction time associated with an electronic
transaction and increases the efficiency of the electronic transaction. App.
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Br. 15–18 (citing Spec. 6:18–263); Reply Br. 4–5, 9–10. Appellants argue
the present claims are patent eligible because they recite a specially
programmed computer. App. Br. 19–20.
Appellants further argue, similar to DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014), the present claims are
necessarily rooted in computer technology to solve problems specifically
arising in the realm of computer networks by reducing transaction times
while increasing the overall efficiency of the system. App. Br. 21–23 (citing
Spec. 11:31–12:7); Reply Br. 4–5. We disagree with Appellants.
Appellants argue, similar to Amdocs (Israel) Ltd. v. Openet Telecom,
Inc., 841 F.3d 1288 (Fed Cir. 2016), the present claims provides an
unconventional technical solution (determining one or more transaction
patterns based on the plurality of previously executed electronic transactions
and determining one or more proposed electronic transactions routed
through two or more of the plurality of nodes and two or more of the
plurality of authorities) to a technological problem (the traditional method of
determining and routing electronic transactions either did not consider or
could not take into account how an electronic transaction would be treated
by different nodes in a transaction route). Reply Br. 7–8 (citing Spec. 2:2–
19).

3 Appellants cite Castinado ¶¶ 17–18. App. Br. 17. To the best of our
understanding, Castinado corresponds to the present case’s published
application (US 2015/0032600 A1; published Jan. 29, 2015). For
consistency, we refer to citations from the Specification throughout our
Decision.
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C. Discussion
1. Step 2A, Prong 1
Claim 1 is reproduced below, with emphases.
1. A system for executing electronic transaction
services, comprising:
one or more processors operable to:
access first charge information associated with
electronic transactions related to a plurality of nodes;
determine a plurality of first charge ratings for the
first charge information;
access second charge information associated with
electronic transactions related to a plurality of regulatory
authorities, wherein each regulatory authority has
authority over one or more of the plurality of nodes;
determine a plurality of second charge ratings for
the second charge information;
access a plurality of previously executed electronic
transactions associated with a user;
determine one or more transaction patterns based
on the plurality of previously executed electronic
transactions;
calculate a current cost associated with the one or
more of the plurality of previously electronic transactions
based at least in part on the first and second charge
information; and
determine, based at least in part on the first and
second charge information, one or more proposed
electronic transactions routed through two or more of the
plurality of nodes and two or more of the plurality of
authorities, wherein the one or more proposed electronic
transactions are associated with a proposed cost;
determine one or more first confidence ratings
associated with the two or more nodes and one or more
second confidence ratings associated with the two or more
authorities, wherein the first confidence rating indicates a
reliability of the first charge information and the second
confidence rating indicates a reliability of the second
charge information;
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compare the proposed cost of the proposed
electronic transaction to the current cost associated with
the one or more of the plurality of previous electronic
transactions; and
in response to the proposed cost being less than the
current cost, the one or more first confidence ratings being
above a first threshold, and the one or more second
confidence ratings being above a second threshold:
transmit an authorization request to the user
identifying the one or more proposed electronic
transactions and the proposed cost;
receive authorization from the user to
execute the proposed transaction; and
execute the proposed electronic transaction.
The emphasized portions of claim 14, reproduced above, recite
commercial transactions. According to the Memorandum, commercial
transactions fall into of certain methods of organizing human activity. See
Memorandum. Moreover, those certain methods of organizing human
activity are a type of an abstract idea. See id.
We disagree with Appellants’ argument that the Examiner fails to
provide a prima facie rejection because the Examiner overlooks various
limitations. App. Br. 14–15; Reply Br. 3–4. Patent eligibility under
35 U.S.C. § 101 is a question of law that is reviewable de novo. See
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012). We are
aware of no controlling authority that requires the Examiner to provide
factual evidence under step one of the Alice framework to support a

4 Claim 1, reproduced above with emphases, recites similar features as
independent claims 3, 9, and 15. Appellants do not argue claims 2, 3, 5–9,
11–15, and 17–20 separately, but assert the § 101 rejection of those claims
should be withdrawn for at least the same reasons as argued for claim 1.
App. Br. 12–23. We, therefore, group claims 1–3, 5–9, 11–15, and 17–20
together and refer to those claims as the “present claims.”
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determination that a claim is directed to an abstract idea. The Federal
Circuit has repeatedly noted that “the prima facie case is merely a procedural
device that enables an appropriate shift of the burden of production.” Hyatt
v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977
F.2d 1443, 1445 (Fed. Cir. 1992)). The Examiner satisfies the burden of
establishing a prima facie case under 35 U.S.C. § 132 by setting forth a
rejection in a sufficiently articulate and informative manner. In re Jung, 637
F.3d 1356, 1363 (Fed. Cir. 2011). If the Examiner “adequately explain[s]
the shortcomings . . . the burden shifts to the applicant to rebut the prima
facie case with evidence and/or argument.” Hyatt, 492 F.3d at 1370. The
Final Office Action adequately explains the § 101 rejection. See Final
Act. 7–17. The Examiner’s statements satisfy § 132(a) because they apply
the Alice analytical framework and apprise Appellants of the reasons for the
§ 101 rejection under that framework. Appellants have not responded by
alleging a failure to understand the rejection.
Because the present claims recite commercial transactions, which fall
into the category of certain methods of organizing human activity (i.e., an
abstract idea), we proceed to prong 2.
2. Step 2A, Prong 2
The present claims do not integrate the abstract idea into a practical
application because they do not impose any meaningful limits on practicing
the abstract idea. In particular, we disagree with Appellants’ argument that,
similar to Enfish and Trading Technologies, the present claims recite are
patent eligible because they recite a reduction in transaction time associated
with an electronic transaction and an increase in the efficiency of the
electronic transaction. App. Br. 15–18 (citing Spec. 6:18–26); Reply Br. 4–
5, 9–10.
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Unlike the claims of Enfish, the present claims do not recite “a
specific improvement to the way computers operate, embodied in the self-
referential table” or similar improvements. Enfish, LLC v. Microsoft Corp.,
822 F.3d at 1336. And unlike the claims of Trading Technologies, the
present claims do not recite a graphical user interface that prevents order
entry at a changed price or similar improvements. Trading Technologies
Int’l Inc., v. CQG, Inc., 675 F. App’x at 1003.
In addition, though Appellants purport to accelerate authorization, our
reviewing court has held that speed and accuracy increases stemming from
the ordinary capabilities of a general purpose computer “do[] not materially
alter the patent eligibility of the claimed subject matter.” Bancorp Servs.,
L.L.C. v. Sun Life Assurance Co. of Can. (U.S.), 687 F.3d 1266, 1278 (Fed.
Cir. 2012). Additionally, “a claim for a new abstract idea is still an abstract
idea.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed.
Cir. 2016). “[U]nder 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 . . . .” Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369,
1376 (Fed. Cir. 2016) (citations omitted).
Instead, the present claims recite an abstract idea as discussed supra,
in § I.C.1. or at best, improving an abstract idea—not a technological
improvement. The Specification indicates the additional elements (i.e., “one
or more processors”5 and “a plurality of nodes”) recited in the present claims
are merely tools used to implement the abstract idea. Spec. 13:25–14:4,

5 Claims 1, 3, and 15 recite “one or more processors,” whereas claim 9
recites “processor.”
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21:3–10. We, therefore, disagree with Appellants’ argument that the present
claims are patent eligible because they recite a specially programmed
computer. App. Br. 19–20. Moreover, simply programming a general-
purpose computer to perform abstract ideas does not integrate those ideas
into a practical application. See 2019 Eligibility Guidance, 84 Fed. Reg. at
55 (identifying “merely includ[ing] instructions to implement an abstract
idea on a computer” as an example of when an abstract idea has not been
integrated into a practical application).
We disagree with Appellants’ argument that, similar to DDR, the
present claims are necessarily rooted in computer technology to solve
problems specifically arising in the realm of computer networks. App. Br.
21–23 (citing Spec. 11:31–12:7); Reply Br. 4–5. Instead, the present claims
are directed to an abstract idea using additional generic elements as tools to
implement the abstract idea as discussed supra in § I.C.1.
Appellants do not make any other arguments pertaining to step 2A,
prong 2. Because the present claims recite an abstract idea that is not
integrated into a practical application, we proceed to Step 2B.
3. Step 2B
We agree with the Examiner’s determination that the abstract idea is
implemented on generic components that are well-understood, routine, and
conventional. Final Act. 9, 12, 14, 17; Ans. 14, 19. The Specification
supports the Examiner’s determination in this regard because it explains that
“one or more processors,” “a processor” and “a plurality of nodes” are
generic components. Spec. 13:25–14:4, 21:3–10. Appellants’ Specification
indicates these elements were well-understood, routine, and conventional
components because it describes them at a high level of generality and in a
manner that indicates that they are sufficiently well-known. Id.
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We disagree with Appellants’ argument that, similar to Amdocs, the
present claims provides an unconventional technical solution to a
technological problem. Reply Br. 7–8 (citing Spec. 2:2–19). Instead, the
present claims are directed to an abstract idea using generic components as
discussed supra, in §§ I.C.1. and I.C.2. or at best, improving an abstract
idea—not an inventive concept.
Appellants do not make any other arguments pertaining to step 2B.
Also, Appellants do not argue claims 2, 3, 5–9, 11–15, and 17–20 separately,
but assert the § 101 rejection of those claims should be withdrawn for at
least the same reasons as argued for claim 1. App. Br. 12–23. Based on our
review of the dependent claims, these claims do not recite any additional
features that would transform the abstract idea embodied in claims 1, 3, 9,
and 15 into an inventive concept. Accordingly, we sustain the Examiner’s
rejection of: (1) independent claims 1, 3, 9, and 15; and (2) dependent
claims 2, 5–8, 11–14, and 17–20 under 35 U.S.C. § 101.
II. Claims 1–3, 5–9, 11–15, and 17–20 Rejected Under 35 U.S.C. § 103
The Examiner finds Cervenka teaches a routing payment processing
to a certain network according to a priority list and transaction amount,
which the Examiner maps to the limitation “access first charge information
associated with electronic transactions related to a plurality of nodes” recited
in claims 1, 3, and 9 (and similarly recited in claim 15). Final Act. 18, 25,
38, 51 (citing Cervenka ¶¶ 73–75, Figs. 3A–3B); Ans. 21–22. The
Examiner finds Cervenka teaches each payment processing network has a
rank within the routing priority list such that networks listed above other
networks on the list have higher priority than the networks listed below
them, which the Examiner maps to the limitation “determine a plurality of
first charge ratings for the first charge information” recited in claim 1 (and
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similarly recited in claims 3, 9, and 15). Final Act. 18, 26, 38–39, 51–52
(citing Cervenka ¶¶ 73–75, Figs. 3A–3B); Ans. 22–23.
Appellants argue Cervenka fails to teach the two limitations in the
preceding paragraph because Cervenka merely determines which payment
processing network to use based on characteristics of the transaction. App.
Br. 23–24. Appellants argue Cervenka only looks at the entire route when
determining the total transaction resulting from all the nodes, whereas claim
1 looks at the nodes themselves. Reply Br. 10. We disagree with
Appellants.
Cervenka teaches a routing payment processing to a certain network
(i.e., a network has a plurality of nodes) according to a priority list and
transaction amount (i.e., access first charge information), which teaches the
limitation “access first charge information associated with electronic
transactions related to a plurality of nodes” recited in claims 1, 3, and 9 (and
similarly recited in claim 15). Cervenka ¶¶ 73–75, Figs. 3A–3B (cited at
Final Act. 18, 25, 38, 51; Ans. 21–22). Cervenka teaches each payment
processing network has a rank within the routing priority list such that
networks listed above other networks on the list have higher priority than the
networks listed below them (i.e., the rank teaches determining a charge
rating), which teaches the limitation “determine a plurality of first charge
ratings for the first charge information” recited in claim 1 (and similarly
recited in claims 3, 9, and 15). Cervenka ¶¶ 73–75, Figs. 3A–3B (cited at
Final Act. 18, 26, 38–39, 51–52; Ans. 22–23).
Regarding Appellants’ argument that Cervenka only looks at the
entire route when determining the total transaction resulting from all the
nodes, whereas claim 1 looks at the nodes themselves (Reply Br. 10), it is
untimely. Appellants’ argument is untimely and waived because the
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Examiner did not change the theory in the Answer while Appellants’
proffered new arguments in the Reply Brief without showing good cause.
See 37 C.F.R. § 41.41(b)(2); compare Final Act. 18, 25, 38, 51 (citing
Cervenka ¶¶ 73–75, Figs. 3A–3B) with Ans. 21–22 (citing Cervenka Fig.
3A); compare App. Br. 23–25 with Reply Br. 10. Moreover, even if this
argument was not untimely, which it is, as stated supra, Cervenka teaches
“access first charge information associated with electronic transactions
related to a plurality of nodes” recited in claims 1, 3, and 9 (and similarly
recited in claim 15). To the extent that Appellants are arguing that Cervenka
fails to teach “without looking at the entire route,” we note that this is not
recited in the independent claims.
Appellants do not argue claims 2, 3, 5–9, 11–15, and 17–20 separately
with particularity, but assert the § 103 rejection of those claims should be
withdrawn for at least the same reasons as argued for claim 1. App. Br. 23–
25. Accordingly, we sustain the Examiner’s rejection of: (1) independent
claims 1, 3, 9, and 15; and (2) dependent claims 2, 5–8, 11–14, and 17–20
under 35 U.S.C. § 103.
We have only considered those arguments that Appellants actually
raised in the Briefs. Arguments Appellants could have made, but chose not
to make, in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(iv).
DECISION
We affirm the Examiner’s decision rejecting claims 1–3, 5–9, 11–15,
and 17–20 under 35 U.S.C. § 101.
We affirm the Examiner’s decision rejecting claims 1–3, 5–9, 11–15,
and 17–20 under 35 U.S.C. § 103.
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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