Kevin Wang

Patent Trials and Appeals Board

Mar 18, 2021

2020005868 (P.T.A.B. Mar. 18, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/967,301 12/12/2015 Kevin Sunlin Wang 10235-3 2381
22442 7590 03/18/2021
Sheridan Ross PC
1560 Broadway
Suite 1200
Denver, CO 80202
EXAMINER
FADOK, MARK A
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
03/18/2021 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):
e-docket@sheridanross.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KEVIN SUNLIN WANG
____________

Appeal 2020-005868
Application 14/967,301
Technology Center 3600
____________

Before BIBHU R. MOHANTY, BRADLEY B. BAYAT, and
TARA L. HUTCHINGS, Administrative Patent Judges.

BAYAT, Administrative Patent Judge.

DECISION ON APPEAL
Kevin S. Wang (Appellant)1 appeals pursuant to 35 U.S.C. § 134(a)
from the decision rejecting claims 1 and 119–147, which constitute all
pending claims before us for review,2 under 35 U.S.C. § 101 as being
directed to an abstract idea without significantly more. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Bynfor
Inc.” Appeal Br. 2.
2 Claims 2–118 are canceled. Appeal Br. 22, Claims App.
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STATEMENT OF THE CASE
Invention
Appellant’s “disclosure relates to auctions and, more specifically, to a
method and system for sealed bidding in online auctions.” Spec. ¶ 2. The
Abstract section of the disclosure describes the invention as a
system and method for sealed bid auctions through the
implementation of computer device, wherein an auction includes
sealed bids, assigning random IDs for undisclosed real IDs, and
obtaining double confirmation from both bidders and vendors.
Vendors may choose to have a reserve price such as an open reserve
price and a conditional hidden reserve price. The system generates
random bidder IDs and allows the bidders to self-determine into
two different bidding categories, where one bidding category pays
the full winning bid amount and the other bidding category
purchases a “price-protection policy” that allows the recalculation
of the final winning bid amount based on the “price-protection
formula”, wherein the “price-protection formula” is calculated as a
sum of the “price-protection fee”, the second-highest bid amount,
and the amount from a pre-determined percentage of a difference
between the highest bid amount and a second-highest bid amount.

Claimed Subject Matter
System claim 1 and method claim 133 recite substantially similar
subject matter. Claim 133, reproduced below with added emphases, is
representative of the subject matter on appeal.
133. A computer-implemented method for an online sealed
bid auction, comprising:
transferring for display, on one or more computing
devices associated with one or more bidders, respectively, at
least a portion of data related to an auction subject for the
online sealed bid auction;
receiving, by a server, one or more sets of bid data from
the one or more computing devices, respectively, wherein each
of the one or more sets of bid data comprises a bid amount;
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receiving one or more sets of commitment data, wherein
each set of commitment data comprises a commitment to pay a
committed amount for adjusting a winning bid amount upon
winning the online sealed bid auction;
automatically storing, on the server, the one or more sets
of bid data and the one or more sets of commitment data;
automatically transferring for display, on the one or
more computing devices, a first representation of the online
sealed bid auction comprising one or more different identifiers
corresponding to the one or more sets of bid data, respectively;
responsive to a closing of the online sealed bid auction:
determining a highest bid amount as the winning
bid amount for a winning bidder and a second highest bid
amount based on the one or more sets of bid data; and
responsive to the winning bid amount being
associated with at least one of the one or more sets of
commitment data comprising a respective committed
amount:
automatically re-calculating the winning bid
amount for the winning bidder based on at least a
portion of data related to the highest bid amount,
the second highest bid amount, and the respective
committed amount; and
transferring for display, on the one or more
computing devices, a second representation of the
auction comprising data related to the winning
payment amount or the winning bid amount; and
transferring for display, on the one or more
computing devices, additional data related to
allocation of at least a portion of the respective
committed amount to the one of more bidders or a
vendor.
OPINION
Under 35 U.S.C. § 101, an invention is patent eligible if it claims a
“new and useful process, machine, manufacture, or composition of matter.”
35 U.S.C. § 101. The Supreme Court, however, has long interpreted 35
U.S.C. § 101 to include an implicit exception: “[l]aws of nature, natural
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phenomena, and abstract ideas” are not patentable. Alice Corp. v. CLS Bank
Int’l, 573 U.S. 208, 216 (2014).
The Supreme Court, in Alice, reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66 (2012), “for distinguishing patents that claim
laws of nature, natural phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts.” Alice Corp., 573 U.S. at 217.
The first step in that analysis is to “determine whether the claims at issue are
directed to one of those patent-ineligible concepts.” Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered “individually and ‘as an ordered combination’”
to determine whether there are additional elements that “‘transform the
nature of the claim’ into a patent-eligible application.” Id. (quoting Mayo,
566 U.S. at 78, 79). This is “a search for an ‘inventive concept’ — i.e., an
element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. at 217–18 (alteration in original) (citation
omitted).
In rejecting claims 1 and 119–147 as directed to an abstract idea
without significantly more, the Examiner evaluated the claims under the
Alice framework and the 2019 Revised Guidance.3 Final Act. 9–39.

3 The U.S. Patent and Trademark Office (“USPTO”) published revised
guidance for use by USPTO personnel in evaluating subject matter
eligibility under 35 U.S.C. § 101. 2019 REVISED PATENT SUBJECT MATTER
ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (the “2019 Revised
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Appellant argues all claims as a group. Appeal Br. 6–19. We select claim
133 as representative of the group, with claims 1, 119–132, and 134–147
standing or falling therewith. 37 C.F.R. § 41.37(c)(1)(iv)(2019).
Statutory Categories under § 101
To determine subject matter eligibility under 35 U.S.C. § 101, the
Examiner first determines if claim 133 falls into one of the four statutory
categories of invention: processes, machines, manufactures, or composition
of matter. See MPEP § 2106.03. The Examiner determines, and we agree,
that claim 133 is directed to a process, which is a proper statutory category
of invention under § 101. See Final Act. 10.
We now turn to the two step Alice framework.
Step One of the Alice Framework (2019 Revised Guidance, Step 2A)
Step 2A, Prong One
The first step in the Alice framework is to determine whether the
claim at issue is “directed to” a patent-ineligible concept, e.g., an abstract
idea. Alice Corp., 573 U.S. at 217. This first step, as set forth in the 2019
Revised Guidance (i.e., Step 2A), consists of a two-prong test. Prong One of
Step 2A involves whether the claim recites a judicial exception, e.g., one of
the following three groupings of abstract ideas: (1) mathematical concepts;
(2) certain methods of organizing human activity (e.g., fundamental

Guidance”). That guidance revised the USPTO’s examination procedure
with respect to the first step of the Alice framework by (1) “[p]roviding
groupings of subject matter that [are] considered an abstract idea”; and (2)
“clarifying that a claim is not ‘directed to’ a judicial exception if the judicial
exception is integrated into a practical application of that exception.” Id.
at 50. The 2019 Revised Guidance has been incorporated into the MPEP,
particularly sections 2103 through 2106.07(c).

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economic principles or practices, commercial or legal interactions); and
(3) mental processes. 2019 Revised Guidance, 84 Fed. Reg. at 54.
Claim 133 is drawn to a method for a sealed bid auction and recites, in
part, the steps of: receiving bid data; receiving commitment data;
determining a highest bid amount as the winning bid amount for a winning
bidder and a second highest bid amount based on the bid data in response to
a closing time of the auction; and responsive to the winning bid amount
being associated with commitment data comprising a respective committed
amount: re-calculating the winning bid amount for the winning bidder based
on at least a portion of data related to the highest bid amount, the second
highest bid amount, and the respective committed amount.
As discussed above, Appellant’s scheme for conducting a sealed bid
auction allows bidders to self-determine into two different bidding categories,
where one bidding category pays the full winning bid amount and the other
bidding category purchases a price-protection policy by committing to pay an
amount for adjusting a winning bid amount that allows the recalculation of the
winning bid amount based on the highest bid amount, the second-highest bid
amount, and committed amount. Spec. Abstract.
Under the broadest reasonable interpretation and consistent with
Appellant’s disclosure, the Examiner determines, and we agree, that the
steps of claim 133 (not italicized) as a whole describe “the abstract idea of
[l]imiting risk in an auction by offering a Bid Protection policy,” which is a
fundamental economic practice. Final Act. 9; see also Ans. 4 (The concept
of “limiting risk in an auction by offering a bid protection policy is
considered a bidders benefit that limits the risk of the user through the
purchase of the commitment (policy) that optimizes the vendor-bidder
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benefit.”). Appellant’s scheme is akin to Alice’s “mitigat[ion] of settlement
risk” and “risk hedging in Bilski.” Final Act. 11; see also 2019 Revised
Guidance, 84 Fed. Reg. at 52 (Concepts related to managing relationships or
transactions between people, or satisfying or avoiding a legal obligation is
also an enumerated method of organizing human activity.). The Examiner
also explains that the abstract idea recited here is also not meaningfully
different from the idea found to be abstract in BuySAFE, Inc. v. Google Inc.,
765 F.3d. 1350 (Fed. Cir. 2014), which “limits risk of both buyer and seller
during a transaction (the auction being a form of transaction) and binds a
transaction to a set of rules that have been agreed to upon the ending of the
transaction.” Ans. 4.
Under Step 2A, Prong One, Appellant argues that the rejections fails
to identify “any courts’ decision in which the concept” characterized by the
Examiner “was found to be an abstract idea.” Appeal Br. 7. This argument
is without merit because the Examiner is not required to identify the exact
abstract idea in a prior court decision. Since the Alice case, courts have been
‘‘compar[ing] claims at issue to those claims already found to be directed to
an abstract idea in previous cases.’’ See Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1334 (Fed. Cir. 2016); see also Amdocs (Israel) Ltd. v.
Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016) (‘‘[T]he
decisional mechanism courts now apply [to identify an abstract idea] is to
examine earlier cases in which a similar or parallel descriptive nature can be
seen—what prior cases were about, and which way they were decided.’’).
As discussed, the Examiner compares Appellant’s claim with at least
three prior court decisions, which Appellant appears to merely distinguish
literally from their parallel descriptive abstract concepts. See Reply Br. 3. It
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is well-established that “fundamental economic practice[s] long prevalent in
our system of commerce” are abstract ideas. Alice Corp., 573 U.S. at 219–
220. In Alice and Bilski, the Supreme Court found hedging financial risk
and intermediated settlement qualified as fundamental economic practices.
Id. In BuySAFE, the Federal Circuit built on these precedents and found
transaction performance guarantees are abstract ideas. BuySAFE, 765 F.3d at
1355.
Similar to BuySafe, receiving a commitment or consideration creates a
contractual relationship as part of the sealed bid auction providing “mitigation
of risks related to online auctions and optimization of vendor-bidder benefits.”
Spec. ¶ 39. And, re-calculating the winning bid amount to be paid based on
that respective commitment and other criteria is a simple mathematical
calculation (see Spec. ¶¶ 74–85; see also Appeal Br. 8 (“If the winning bid is
$500 and the commitment amount is $10, after recalculation, the winning
bidder may end up paying more or less than the original winning bid of $500
– let’s say $525 or $490 is the recalculated winning bid amount, which
depends on the highest bid amount, the second highest bid amount, and the
commitment amount.”)) that can practically be performed in the human
mind, which is a mental process and an abstract idea. 2019 Revised
Guidance, 84 Fed. Reg. at 52 (“Mental processes—concepts performed in
the human mind (including an observation, evaluation, judgment,
opinion).”).
Appellant acknowledges “that the present invention is directed to
‘mitigating risks related to online sealed bid auctions and the optimization of
vendor-bidder benefits,’” yet contends that this “is significantly more than
simply limiting risk in an auction.” Appeal Br. 7. Appellant argues that the
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Examiner “has not properly considered the novel features of the claimed
invention, which provide a technical solution to a technical problem.” Id.
According to Appellant, those three novel features include: (1) “receive a
commitment to pay a committed amount for adjusting the winning bid
amount upon winning the reverse auction”; (2) recalculate the winning bid
amount for the winning bidder based on at least a portion of data related to
the winning bid amount, the second bid amount, and the respective
committed amount; and” (3) “allocate at least a portion of the respective
committed amount to the one or more bidders.” Id.
We are unpersuaded at least because this argument is more
appropriately considered at the second step of the Alice test and under Prong
Two of Step 2A, in evaluating whether the abstract idea is integrated into a
practical application. To the extent Appellant is arguing that the invention
must claim an auction with no variation to be related to the abstract idea of
an auction, we disagree. The inquiry at this first prong is whether the claim
at issue recites an abstract idea. We must consider if the claim before us is
drawn to the concept of an auction, as the Court in Alice determined that
those claims were drawn to the concept of intermediated settlement. A
variation on the abstract idea does not necessarily render the claim non-
abstract. BuySAFE, 765 F.3d at 1355 (The “narrowing of [a] long-familiar
commercial transaction[] does not make the idea non-abstract for section
101 purposes”).
Putting aside the implementation of the steps by a computer or server
and in an online environment, not only are auctions extensively discussed in
the Specification, claim 133 also substantively describes steps for carrying
out an auction: receiving bids; receiving a commitment amount for adjusting
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a winning bid amount upon winning the sealed bid auction; upon closing of
the auction: determining a highest bid amount as the winning bid amount
and a second highest bid amount based on the bids; and responsive to the
winning bid amount being associated with a committed amount: re-
calculating the winning bid amount to be paid. Receiving a price-protection
fee as consideration and re-calculating the winning bid based in part on the fee,
which Appellant alleges are novel features, do not make the mitigation of risks
related to sealed bid auctions any less abstract. And, the allocation feature
recited as part of the display step, which Appellant indicates as the third novel
feature, is identified by the Examiner as an additional element considered under
Prong Two.
For these reasons, we are not persuaded the Examiner erred in
determining that claim 133 recites an abstract idea.
Step 2A, Prong Two
Having concluded that claim 133 recites a judicial exception, i.e. an
abstract idea (Step 2A, Prong One), the Examiner next considers whether the
claim recites additional elements that integrate the judicial exception into a
practical application (Step 2A, Prong Two). 2019 Revised Guidance, 84
Fed. Reg. at 51. When a claim recites a judicial exception and fails to
integrate the exception into a practical application, the claim is “directed to”
the judicial exception. Id. A claim may integrate the judicial exception
when, for example, it reflects an improvement to technology or a technical
field. Id. at 55.
The Federal Circuit has explained that “the ‘directed to’ inquiry
applies a stage-one filter to claims, considered in light of the specification,
based on whether ‘their character as a whole is directed to excluded subject
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matter.’” Enfish, 822 F.3d at 1335 (quoting Internet Patents Corp. v. Active
Network, Inc., 790 F.3d 13133, 1346 (Fed. Cir. 2015)). In the context of
computer-implemented inventions, the court has clarified that a relevant
inquiry is “to ask whether the claims are directed to an improvement to
computer functionality versus being directed to an abstract idea.” Id. The
court contrasted claims “directed to an improvement in the functioning of a
computer” with claims “simply adding conventional computer components
to well-known business practices,” or claims reciting “use of an abstract
mathematical formula on any general purpose computer,” or “a purely
conventional computer implementation of a mathematical formula,” or
“generalized steps to be performed on a computer using conventional
computer activity.” Id. at 1338.
Under Step 2A, Prong Two, the Examiner determines that the
additional elements recited in claim 133 (italics) include: “transferring for
display” steps, “storing” step, “computing devices,” and a “server.” Final
Act. 16–19. According to the Examiner, these additional elements do not
reflect “an improvement to the functionality of a computer or other
technology or technical field” and fail to integrate the abstract idea into a
practical application. Id. at 21.
As discussed above, Appellant similarly argues that “[t]he rejection
does not provide reasoning or explanation as to why the Three Novel
Features of the present invention are not considered additional limitations.”
Appeal Br. 13; see also Reply Br. 5–6. According to Appellant: “Since the
Three Novel Features recalculates the winning bid amount to a different
amount, it is obvious that the Three Novel Features put additional or
meaningful limitations on a traditional or conventional auction.” Id. at 13.
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This argument is unpersuasive, in part, because the first two features
Appellant relies upon are part of the abstract idea but the evaluation under
Prong Two of Step 2A is whether the additional elements integrate the
judicial exception into a practical application. 2019 Revised Guidance, 84
Fed. Reg. at 51. The third allocation feature Appellant relies upon is recited
in claim 133 as “transferring for display, on the one or more computing
devices, additional data related to allocation of at least a portion of the
respective committed amount to the one of more bidders or a vendor.” The
transferring of data (e.g., allocation data) for display is described in the
Specification as performed by any generic “computing device known in the
art.” Spec. 66 (“Each of the bidder computing devices (300) may also have
a display (304) and be any computing device known in the art. For example,
a smartphone, tablet, personal computer or any other computing device.”).
As such, the “transferring for display” steps merely invoke generic
computing devices as tools to present information to a user, rather than
reflecting an improvement in computer functionality. See Interval Licensing
LLC v. AOL, Inc., 896 F.3d 1335, 1344–45 (Fed. Cir. 2018) (Instructions to
display two sets of information on a computer display in a non-interfering
manner, without any limitations specifying how to achieve the desired result,
is insufficient to show an improvement in computer functionality.).
We recognize that “[s]oftware can make non-abstract improvements
to computer technology just as hardware improvements can, and sometimes
the improvements can be accomplished through either route.” Enfish, 822
F.3d at 1335. However, “to be directed to a patent-eligible improvement to
computer functionality, the claims must be directed to an improvement to
the functionality of the computer or network platform itself.” Customedia
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Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020)
(citing Enfish, 822 F.3d at 1336–39). Claim 133 recites generic computing
components (i.e., computing devices and a server) arranged in no particular
way to perform standard functions of transferring for display, receiving,
storing, determining, and calculating without improving computers or
networks. The Specification’s description of these components makes clear
that they are generic components that do not improve the functioning of a
computer or other technology, and which are used as tools in their ordinary
capacity to implement the abstract idea. See, e.g., Spec. ¶¶ 66, 79–83, Figs.
1A, 1B, 3, 4. When considered as a whole, claim 133 fails to integrate the
recited abstract idea into a practical application because the additional
elements fail to apply or use the judicial exception in some meaningful way
beyond generally linking the use of the judicial exception to a particular
technological environment.
Accordingly, claim 133 is directed to a judicial exception.
Step Two of the Alice Framework (2019 Revised Guidance, Step 2B)
The Examiner next considers whether claim 133 recites additional
elements, individually, or as an ordered combination, that provide an
inventive concept. Alice Corp., 573 U.S. at 217–18. The second step of the
Alice test is satisfied when the claim limitations involve more than
performance of well-understood, routine, and conventional activities
previously known to the industry. Berkheimer v. HP Inc., 881 F.3d 1360,
1367 (Fed. Cir. 2018).
The Examiner finds that claim 133 lacks additional elements that are
sufficient to amount to significantly more than the judicial exception. Final
Act. 35–39. The Examiner finds the Specification shows the use of
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conventional computer components in a known technological environment
(i.e., Internet) that perform well-understood, routine, or conventional
functions, which amount to no more than generally linking the use of the
judicial exception to the particular technological environment. Id. at 37–38.
Appellant argues that the “Three Novel Features” discussed above are
“by no means ‘generic computer functions’ because no computer has
performed them previously. Appeal Br. 15. We disagree.
The “commitment” and “allocation” features of “receiving, by the
auction server, one or more set of commitment data” and “transferring for
display, on the one or more remote computing devices” are each described in
the Specification as being performed by generic and conventional computing
components. See, e.g., Spec. ¶ 66 (“Each of the bidder computing devices
(300) may also have a display (304) and be any computing device known in
the art.”); ¶ 79 (“Examples of well-known computing systems,
environments, and/or configurations that may be suitable for use with the
invention include, but are not limited to, personal computers, server
computers, hand-held, laptop or mobile computer or communications
devices such as cell phones and PDA’s” etc.), ¶ 81 (“The software
components may, generally, be implemented in hardware, if desired, using
conventional techniques.”). And, it is well-established by now, “[t]hat a
computer receives and sends the information over a network—with no
further specification—is not even arguably inventive.” BuySAFE, 765 F.3d
at 1355; In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
1316 (Fed. Cir. 2011) (Absent a possible narrower construction of the terms
processing, receiving, and storing functions can be achieved by any general
purpose computer without special programming.).
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The “automatically re-calculating” feature of processing data and
carrying out mathematical calculations, as discussed above, represent the
most basic function of any computer. The Federal Circuit has recognized
that “an invocation of already-available computers that are not themselves
plausibly asserted to be an advance, for use in carrying out improved
mathematical calculations, amounts to a recitation of what is ‘well-
understood, routine, [and] conventional.”’ SAP Am., Inc. v. InvestPic, LLC,
898 F.3d 1161, 1170 (alteration in original) (citing Mayo, 566 U.S. at 73).
Simply appending well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception fails to qualify as “significantly more.” Alice
Corp., 573 U.S. at 225.
As an ordered combination, the additional elements provide no more
than when they are considered individually. Alice, 573 U.S. at 225. They
recite generic computer components that perform well-understood and
conventional functions. They are used as tools to implement the judicial
exception. See SAP Am., 898 F.3d at 1169–70 (limitations of various
databases and processors did not improve computers but used already
available computers and available functions as tools to execute the claimed
process); Inventor Holdings LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (considering the method steps of the
representative claims as an “ordered combination” reveals that they “amount
to ‘nothing significantly more’ than an instruction to apply [an] abstract
idea” using generic computer technology). Thus, we agree with the
Examiner that claim 133 lacks an inventive concept sufficient to transform
the abstract idea into patent-eligible subject matter.
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We have considered Appellant’s remaining arguments, but we find
them unpersuasive. Accordingly, we sustain the rejection of independent
claim 133 as directed to a judicial exception without significantly more, and
claims 1, 119–132, and 134–147, which fall with claim 133.
CONCLUSION
The rejection under 35 U.S.C. § 101 is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 119–147 101 Eligibility 1, 119–147
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED