Lutnick, Howard W. et al.

Patent Trials and Appeals Board

Dec 23, 2020

2019004160 (P.T.A.B. Dec. 23, 2020)

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.
10/890,602 07/13/2004 Howard W. Lutnick 03-1089 7897
63710 7590 12/23/2020
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
12/23/2020 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):
lkorovich@cantor.com
mcatarino@cgolaw.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOWARD W. LUTNICK and MICHAEL SWEETING
Appeal 2019-004160
Application 10/890,602
Technology Center 3600
Before JEFFREY S. SMITH, MIRIAM L. QUINN, and
AMBER L. HAGY, Administrative Patent Judges.
QUINN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 7–11, 14, 15, 17–27, 29–32, 34,
36, 38, 49–56, and 97–99. See Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as BGC Partners, LLC.
Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claims are directed to a trading application program interface.
According to the Specification, “this invention relates to a trading
application program interface suitable for use with quantitative analysis
trading.” Spec. ¶ 2. The Specification explains that quantitative analysis
trading “refers to a trading strategy that makes use of information
technology to substantially remove the human element from the decision-
making process involved in trading,” and that it would be desirable to
provide a trading application interface suitable for quantitative analysis
trading. Id. ¶¶ 3, 6. However, the Specification also explains that it would
be desirable to provide users with a trading application program that is
adapted to take advantage of first buyer/first seller privileges afforded by the
trading application’s interactive trading rules. Id. ¶ 7. Part of that
interactivity and user participation includes the use of a Graphical User
Interface (“GUI”) for a user to interact with the application resident in a
server and enabling various states where participants enter bids and offers
into the trading system and transact trades according to exclusivity of
priority rules. Id. ¶¶ 31, 37−40.
Claim 1 is reproduced below with added identifiers where needed (in
bold) for ease of discussion, and is illustrative of the claimed subject matter:
1. A networked exchange system comprising:
[A] memory and at least one processor, the memory
storing instructions that, when executed by the at least one
processor, cause the at least one processor to:
(1) provide a system bid-offer state in which the system
is configured to:
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[a] populate trading interfaces of remotely
networked participates with information enabling the bid-offer
state;
[b] receive bids and offers from remotely
networked passive participants with respect to the item at
specified prices and volumes;
[c] receive from remotely networked aggressor
participants hits and lifts of the received bids and offers; and
[d] when the system is in the system bid-offer
state, the instructions further causing the at least one processor
to:
[i] receive from a passive participant one of
a bid and an offer with respect to the item; and
[ii] receive from an aggressor participant a
respective one of a hit and a lift of the received one of the
bid and offer;
(2) in response to receiving one of the hit and lift from
the aggressor participant, transition the system to a system
trading state, and when the system is in the system trading state,
the instructions further causing the at least one processor to:
(a) populate the trading interfaces of remotely
networked participates with information enabling the system
trading state;
(b) execute a trade transaction in accordance with
the received one of the hit and lift at an execution price
set by the received one of the hit and lift,
(c) provide a period of exclusivity to the aggressor
participant and the passive participant, in which the
information enabling the system trading state includes an
identifier to the aggressor participant notifying of the
period of exclusivity, the instructions further causing the
at least one processor, during the period of exclusivity to:
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[i] permit execution of transactions between
the aggressor participant and the passive
participant of additional volume of the item at the
execution price;
[ii] prevent execution of transactions by
other participants at the execution price; and
[iii] populate the trading interfaces of
remotely networked participants with limit offers
and limit bids in an order book behind a best
trading price of the aggressor participant,
(d) during the period of exclusivity, receive from
at least one other participant one of a hit of a bid to buy
at a price lower than the execution price, and a lift of an
offer to sell at a price higher than the execution price, and
(e) during the period of exclusivity, execute a trade
transaction for the item at one of the price lower than the
execution price and the price higher than the execution
price in accordance with one of the hit and lift received
from the at least one other participant.
Appeal Br. 13−14 (Claim Appendix).
REJECTION
Claims 1 and 8 are rejected under 35 U.S.C. § 112(a) or 35 U.S.C.
§ 112 (pre–AIA). Final Act. 2–3.
Claims 1–4, 7–11, 14, 15, 17–27, 29–32, 34, 36, 38, 49–56, and 97–99
are rejected under 35 U.S.C. § 101. Final Act. 3–10.
OPINION
We review the appealed rejection for error based upon the issues
identified by Appellant, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential).
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To the extent Appellant has not advanced separate, substantive arguments
for particular claims, or other issues, such arguments are waived. 37 C.F.R.
§ 41.37(c)(1)(iv) (2020). For example, here Appellant argues all the claims
rejected under the § 101 rejection in general, as a group, without identifying
any particular claim or subgroup of claims to which the arguments apply.
Appeal Br. 6−10. We therefore select claim 1 as representative and decide
the appeal as to the § 101 ground of rejection on the basis of claim 1 alone.
See 37 C.F.R. § 41.37(c)(1)(iv) (“When multiple claims subject to the same
ground of rejection are argued as a group or subgroup by appellant, the
Board may select a single claim from the group or subgroup and may decide
the appeal as to the ground of rejection with respect to the group or subgroup
on the basis of the selected claim alone.”).
1. Ground of Rejection Based on § 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. But 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).
To determine whether a claim falls within an excluded category, the Court
has set out a two-part 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)). That framework requires us to first consider 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’
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application explain the basic concept of hedging, or protecting against
risk.”). 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 (citation and quotation marks
omitted).
The PTO has 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 MPEP § 2106.05(a)–(c), (e)–(h) (9th Ed.,
Rev. 08.2017 (Jan. 2018))). Guidance at 52–55.
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 recites an inventive concept, by determining 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 at 56.
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With these principles in mind, we turn to the Examiner’s § 101
rejection.
(a) Statutory Category—Step 1 of the Guidance
The Examiner finds that claim 1, and the claims that depend from it,
are directed to an apparatus, which is one of the four statutory categories: a
machine. Ans. 4. Appellant makes no argument to the contrary. We agree
that claim 1 is directed to a machine in accordance with the statutory
categories of § 101.
(b) The Judicial Exception—Step 2A, Prong 1, of the Guidance
The Guidance breaks the Alice/Mayo test for identifying claims
directed to judicial exceptions into two prongs. Guidance at 53. Step 2A,
Prong 1, asks whether the claims recite a judicial exception. Guidance at
52–54.
The Examiner finds that limitations of claim 1 recite certain methods
of organizing human activity, and in particular fundamental economic
practices, which are abstract ideas. Ans. 4−6. For instance, in the Final
Action, the Examiner identifies limitations (2)(b), (2)(c), and 2(e) as reciting
“basic concepts of organizing human activity and financial trading, which is
a fundamental economic practice.” Final Act. 7−9 (internal citations
omitted). Limitation (2)(b) recites executing a trade transaction in
accordance with a received hit and lift at an execution price set by the hit or
lift. The recited “hit” and “lift” are trading commands (to sell or buy a
desired volume of an asset) issued by an aggressor participant. Spec. ¶¶ 13,
14. Thus, we agree with the Examiner that this limitation fairly describes
the action of trading a financial asset based on the instructions given by the
trader. Accordingly, we determine that limitation (2)(b) recites certain
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methods of organizing human activity, such as financial trading, which
constitutes a sub-category of abstract ideas in the realm of a fundamental
economic practice.
Limitation 2(c) likewise recites aspects of a financial trading
transaction, which also falls under the sub-category of a fundamental
economic practice. This limitation recites a “period of exclusivity” provided
to the aggressor and passive participants. In this time period, the aggressor
participant is notified, via an “identifier” of the period of exclusivity. This
limitation, therefore, merely recites the part of the trading transaction in
which one of the parties involved in the trade is notified of a period of
exclusivity during which certain trade transactions are allowed. For
instance, limitations 2(c)(i) and 2(c)(ii) specify that, during the exclusivity
period, the aggressor and a passive participant may enter into additional
volume trading at the execution price, while other participants are prevented
from executing transactions at the execution price. In other words, and
according to the Specification, the exclusivity of the two priority participants
is limited to trading at the price at which the hit or lift was transacted.
Spec. ¶ 40.
As for limitation 2(e), we agree with the Examiner that it too recites a
fundamental economic practice of financial trading. This limitation recites
that, during the period of exclusivity, a trade transaction may be executed at
a price higher or lower than the execution price in accordance with a hit or
lift received from another participant. In other words, and in view of the
Specification, this limitation recites that, during the exclusivity period, a
non-priority participant’s trade would be executed when it involves a hit or
lift at a price worse than the execution price. Id. ¶¶ 41−42.
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In a similar vein, limitations (1) and (2) refer to providing a bid-offer
state and transitioning to a system trading state. These limitations, without
more, are part of the abstract idea itself of a fundamental economic practice
because they exemplify the order of trading: first receiving the bids, offers,
hits, and lifts from participants, and then executing the trades according to
the trading rules.
Together these limitations describe rules for financial trading that
allow for traders to enter into an exclusivity period in which a set of traders
can buy or sell at an agreed price, to the exclusion of other traders, unless a
pending passive order involves a price worse than the agreed price. These
trading rules and actions constitute a fundamental economic practice or
principle, as they are intimately related to the economy and commerce and
essentially involved in placing an order to buy or sell an asset based on
market information. See October 2019 Update: Subject Matter Eligibility, at
5 (citing Trading Technologies Int’l, Inc. v. IBG LLC, 921 F.3d 1084 (Fed.
Cir. 2019)).2
Appellant argues, unpersuasively, that the claims encompass “so
many limitations and are not simply ‘financial trading.’” Appeal Br. 7.
Specifically, Appellant argues that the claims, instead, are “directed to an
improvement in computer-related technology that increases the transparency
and efficiencies of conventional trading systems.” Id. at 8. In the Reply,
Appellant argues that certain elements amount to significantly more than the
abstract idea, because as a whole the claim integrates the judicial exception
into a practical application of the exception. Reply 2−3. These arguments

2 Available at https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf.
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do not squarely address whether the limitations identified above recite the
identified abstract idea, in accordance with Step2A, prong 1 of the
Guidance. These arguments, rather, focus on Step 2A, prong 2 of the
Guidance, which we address below.
Thus, we agree with the Examiner that claim 1 recites the abstract
idea of certain methods of organizing human activity, and more particularly,
a fundamental economic practice or principle.

(c) Integration into a Practical Idea—Step 2A, Prong 2, of the Guidance
Step 2A, Prong 2, asks whether the claims are “directed to” a judicial
exception or whether the claims integrate the judicial exception into a
practical application. Guidance, 84 Fed. Reg. at 53 (explaining the practical
application test responds to “a growing body of decisions . . .
distinguish[ing] between claims that are ‘directed to’ a judicial exception . . .
and those that are not”). A practical application is one where the claim “will
apply, rely on, or use the judicial exception in a manner that imposes a
meaningful limit on the judicial exception, such that the claim is more than a
drafting effort designed to monopolize the judicial exception.” Id. at 54.
For example, limitations that are indicative of “integration into a practical
application” can include:
1) Improvements to the functioning of a computer, or to any other
technology or technical field —see MPEP § 2106.05(a);

2) Applying the judicial exception with, or by use of, a particular
machine —see MPEP § 2106.05(b);

3) Effecting a transformation or reduction of a particular article to a
different state or thing —see MPEP § 2106.05(c); and

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4) Applying or using the judicial exception in some other meaningful
way beyond generally linking the use of the judicial exception to a
particular technological environment, such that the claim as a
whole is more than a drafting effort designed to monopolize the
exception —see MPEP § 2106.05(e).

In contrast, limitations that are not indicative of “integration into a
practical application” may merely include:
1) Adding the words “apply it” (or an equivalent) with the judicial
exception, or mere instructions to implement an abstract idea on a
computer, or merely uses a computer as a tool to perform an
abstract idea —see MPEP § 2106.05(f);

2) Adding insignificant extra-solution activity to the judicial
exception —see MPEP § 2106.05(g); and

3) Generally linking the use of the judicial exception to a particular
technological environment or field of use —see MPEP
§ 2106.05(h).
The Examiner finds that no additional elements are sufficient to
amount to significantly more than the judicial exception. Final Act. 9.
Specifically, the Examiner finds that the additional limitations of a computer
with a processor and memory are generic computer components that perform
their basic functions of storing, retrieving, processing, and displaying, and
that there is no indication that the combination of any additional elements
improves the functioning of a computer or improves any other technology.
Id. at 10; Ans. 7. The Examiner also reasons that the additional elements use
a generic computer to perform extra-solution activities that do not impose
any meaningful limitation on the computer implementation of the abstract
idea. Final Act. 10.
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We agree with the Examiner. Claim 1 recites a “memory and at least
one processor, the memory storing instruction that, when executed by the at
least one processor, cause the at least one processor to” perform all of the
recited steps. Appeal Br. 13. Thus, the entire claim is directed to computer-
implemented instructions, with the processor and memory recited simply as
the tools used perform the recited steps and implement the recited abstract
ideas. None of the steps recited improve either the processor, the memory,
or the combination of these components. Therefore, we agree that these
additional elements, alone or in combination, do not implement the abstract
idea into a practical application.
As for other additional limitations, they constitute extra-solution
activity that does not transform the recited abstract ideas into a practical
application. For instance, limitation (1)(a) recites populating “trading
interfaces of remotely networked participants with information enabling the
bid-offer state.” Appeal Br. 13. Such a limitation, according to Appellant,
involves the transmission of display screens in a GUI of a workstation.
Thus, “populating” a GUI is extra-solution activity that involves merely
transmission of data for display. Limitations (2)(a) and (2)(c)(iii) similarly
recite “populating” the trading interfaces, which involve, again, the
transmission of display screens in a GUI of the workstation, and, therefore,
also constitute extra-solution activity.
All other limitations not discussed above involve extra-solution
activity in the form of receiving data. For example, limitations
(1)(b)−(1)(d)(ii) recite various forms of receiving bids and offers from
passive participants and receiving hits and lifts from aggressor participants
during the bid/offer state. Limitation (2)(d) similarly recites that during the
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period of exclusivity, the processor would receive a hit or a lift at a certain
price. These limitations simply involve receiving data that the computer-
implemented method interprets as bids, offers, hits, and lifts, depending on
the sender and the timing at which the information is received. This activity
of gathering data for use in the claimed method is typical pre-solution
activity that also does not amount to implementing the abstract idea
identified above into a practical application. See MPEP § 2106.05(g); see
also Bilski v. Kappos, 561 U.S. 593, 611−12 (2010) (stating that techniques
to establish the inputs of an equation were token extra-solution activity);
OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)
(finding that presenting offers and gathering statistics amounted to mere data
gathering).
Applicant argues in its Reply that the “networked exchange system”
in the preamble, the “processor,” and recitations of “remotely networked”
participants, passive participants, and aggressor participants show that the
claim as a whole integrates the judicial exception into a practical application
of the exception. Reply 2−3. Appellant further argues that these additional
elements in particular provide an improvement in the functioning of a
computer, or an improvement to the technology or technological field, and
implement the abstract idea in conjunction with a particular machine. Id. at
3. For instance, Appellant argues that these recited features “help to
improve computer performance and computer related operation,” by, for
example controlling “activity over the network and control[ling] computer
workload including computer resources.” Id. at 3−4. Moreover, Appellant
contends, the claimed features “allow a computer to perform a function not
previously performable by a computer and are implemented using a
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particular machine.” Id. at 4. Finally, Appellant reasons that because the
Specification describes problems with current techniques and advantages to
technical solutions to technical problems, the claimed invention improves a
computer or other technology and is implemented using a particular
machine. Id. We are not persuaded by Appellant’s arguments and address
each in turn.
(i) Improvement of Computer Performance
As stated above, the claim recites a memory and a processor in a
computer environment. Neither the memory nor the processor are
technologically improved, and, rather, perform their known functions of
storing instructions, executing instructions, receiving data, processing data,
and outputting data. That the claim recites networked trading participants
does not change our determination that the claims lack any technological
improvement. The inclusion of “remotely networked” participants merely
indicates that the computer environment is networked, without any recitation
of technology for the networked communications or technological detail as
to how the network is improved in any way.
Appellant also argues various other computer improvements, such as
increasing the transparency and efficiency of conventional trading system
(Appeal Br. 8; Reply 6), and controlling activity over the network, such as
by providing real-time trading notifications, and controlling workload of
computer resources (Reply 5). These arguments are not persuasive. The
transparency and efficiency referred to by Appellant appear to be the result
of using a generic computer to speed up computations. See Reply 6 (arguing
that “speed, usability and efficiency are technological improvements
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addressed by the claims that are rooted in computers and networking”).
However, there is no improvement in the computer itself.
Appellant relies on DDR Holdings, LLC v. Hotels.com, L.P.3 to argue
that the claims here are similarly rooted in computer technology and provide
efficiency and transparency as technological improvements. Appeal Br.
9−10. We do not agree. Unlike the claims in DDR Holdings, the claims
here do not solve a problem rooted in computer technology. The
computerized nature of the trading claimed, to the extent it encompasses any
quantitative trading, merely accomplishes replacing a human as the third-
party intermediary receiving and executing trades for market participants.
See Spec. ¶ 3 (describing quantitative analysis trading implementations as
using fundamental and technical data to balance portfolios and communicate
“electronically with market makers, in real time, with substantially no
human intervention”). The exclusivity rules that the claim recites are
interactive trading rules of first buyer/first seller privileges implemented in
the interface. Id. ¶ 7. These are not computer problems solved by the use of
an interface and trading rules that seek to reduce or eliminate a human
intervener. Rather, these are business problems being solved by the use of
computers to perform financial transactions in a strict order and faster.
As for more efficiency in trading resulting from users of the system
able to see the status of the trading action and act accordingly, that is a result
of the use of the computer to display information to the various participants.
See Reply 4−5 (citing, among other portions, the Specification at paragraphs
4, 6, 83, 84, 87). Appellant’s reliance on Core Wireless Licensing S.A.R.L.

3 773 F.3d 1245 (Fed. Cir. 2014)
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v. LG Electronics MobileComm U.S.A., Inc.,4 is unpersuasive, because
unlike the claims of Core Wireless, the claims here do not claim any
improved user interface. The claim language generally recites populating
the trading interface of remotely networked participants “with information
enabling the bid-offer state,” “with information enabling the system trading
state,” and “with limit offers and limit bids in an order book behind a best
trading price of the aggressor participant.” These limitations, unlike those of
the Core Wireless claims, address only that a certain category of information
is presented in the interface. There is no particular manner or technology
recited in which that information is displayed or accessed.
As for the real-time nature of the trades enabled by the use of
computers, this too fails to constitute a technological improvement, because
it is the result of harnessing the known speed of computers to accomplish
trades faster. But the computer itself is not improved in speed or how it
performs the alleged real-time trade alerts. Rather, the ordered combination
of the recited functions are nothing more than instructions to apply financial
trading rules that should occur in real-time using generic computer
technology to accomplish the same result. See Alice, 134 S. Ct. at 2359–60.
Regardless, even if it were technological to communicate with the trading
participants in real-time, the claim does not recite this feature, and, therefore,
the argument is not commensurate with the scope of the claim.
Finally, as for the controlling of network resources or network
activity, we note that the claims do not recite any computer resource

4 880 F.3d 1356, 1362 (Fed. Cir. 2018) (determining that “the claims are
directed to a particular manner of summarizing and presenting information
in electronic devices.”).
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allegedly improved in the manner that it is controlled or in the way it
controls other resources. The claim is directed to a method of trading with
the additional limitations providing a link to the computer environment in a
network, without reciting any network technology or how such technology is
adapted particularly for the recited data transmissions. Thus, we do not
agree with Appellant that the claim is directed to a technological
improvement.
To conclude, we further address Appellant’s argument that the claims
here are most similar to those in Trading Technologies. Appeal Br. 9; Reply
6−7. Appellant contends that the Federal Circuit has recognized that
improvement to the efficiency of a system used in trading is not directed to
an abstract idea and that the claims here also improve the efficacy of systems
used in trading. Appeal Br. 9. More specifically, Appellant alludes to the
“specific display information that allows for greater usability and reliability
of the trading environment.” Id. We do not agree for the reasons stated
above. The claim recites populating certain information to an interface, but
that information is generic in nature and there is no specificity to the manner
in which the information is displayed. Rather, the claim focuses on
transacting the financial trade according to the exclusivity rule specified and
using the display merely as a way for the trading participants to review the
information and make decisions quickly. The Trading Technologies court
found that helping the traders to process information more quickly is not an
improvement to computer functionality. Trading Techs., 921 F.3d at 1091
(stating that the claim is “focused on improving the trader, not the
functioning of the computer”). Therefore, Appellant’s reliance on Trading
Technologies is not persuasive.
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(ii) Particular Machine Argument
Appellant argues that certain recitations (preamble “networked
exchange system,” [A] processor, (1)(a) populating trading interfaces,
(1)(b)−(1)(c) receiving bids, offers, hits, and lifts, and (2)(a) populating and
notifying of a period of exclusivity) were not previously performed by a
computer and are implemented “using a particular machine.” Reply 3−4.
The argument is not persuasive. As discussed above, the limitation that
recites the “interfaces of remotely networked [participants]” involves the
receipt of bids, offers, hits, and lifts and transmission of display screens for a
GUI at the workstation. There is no evidence in the record that such data
communications (receive and transmit) and the corresponding display data
are an improvement in the functioning of computers or that such functions
were not previously performed by a computer. There is further no evidence
that networked devices used to implement the claimed system are “particular
machines.” To the contrary, the Specification describes that the system
comprises a server that may be “any suitable server, processor, computer, or
data processing device, or combination of the same.” Spec. ¶ 26. Likewise
the workstations are described generically as personal computers, or any
combination of devices in a long list of generic computing devices. Id. ¶ 28.
Thus, we determine that the claim neither recites nor refers to any “particular
machine.”
In summary, we interpret the limitations addressed by Appellant in
this argument as populating of “interfaces of the remotely networked
[participants]” as the Examiner has explained: “extra-solution activity of
displaying data which any general purpose computer can perform.” Final
Act. 5. We also interpret the “receiving” limitations as the Examiner has
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explained: “idea(s) which are analogous to the basic concepts of data
recognition and storage . . . [where] these claim limits can be considered
extra solution activities that any general purpose computer can perform.” Id.
Accordingly, Appellant’s arguments that the claims apply the judicial
exception with, or by use of, a particular machine are unpersuasive.
(iii) Conclusion
We conclude, based on our analysis above, that the additional
elements, alone or in combination, do not apply the abstract idea in a
meaningful way such that the claim as a whole is more than a drafting effort
designed to monopolize the exception. For these reasons, we conclude that
claim 1 does not integrate the recited abstract idea into a practical
application within the meaning of the Guidance and, therefore, is directed to
an abstract idea.
(d) Inventive Concept—Step 2B of the Guidance
Because we agree with the Examiner that claim 1 is “directed to” an
abstract idea, we consider whether an additional element (or combination of
elements) adds a limitation that is not well-understood, routine, conventional
(“WURC”) activity in the field or whether the additional elements simply
append WURC activities previously known to the industry, specified at a
high level of generality, to the judicial exception. Guidance, 84 Fed. Reg.
at 56. The Examiner’s finding that an additional element (or combination of
elements) is a WURC activity must be supported with a factual
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determination. Id. (citing MPEP § 2106.05(d), as modified by the
Berkheimer Memorandum5).
The Examiner finds that the additional elements amount to using a
processor to execute the claimed functions in a generic manner. Ans. 8.
Generic components, such as the claimed processor and a tangible, non-
transitory memory, are used to perform the basic functions of storing,
retrieving, processing, and displaying that are well-understood, routine and
conventional activities. Final Act. 9−10. According to the Examiner, the
Specification describes the system components as generic computer
components performing basic functions. Ans. 8 (citing Spec ¶¶ 14, 25−32).
Appellant argues that the Examiner has not performed the proper
analysis because the Examiner has not provided factual findings supporting
the rejection. Reply 7−8. In summary fashion, Appellant also argues that
“for the reasons set forth above, it is submitted that the claims include
additional subject matter that is not well-understood, routine, conventional
activity and thus an ‘inventive concept’ at Step 2B.” Id. at 8.
We do not agree with Appellant that the Examiner has not explained
with factual findings the WURC activity. The Examiner cites various
paragraphs of the Specification that clearly describe the server and
workstations as generic computer components. For instance, as stated
above, the server is described as “any suitable server, processor, computer,
or data processing device, or combination of the same.” Spec. ¶ 26. The
workstations “may be personal computers, laptop computers, mainframe

5 “Changes in Examination Procedure Pertaining to Subject Matter
Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP,
Inc.),” April 19, 2018 (hereinafter “the Berkheimer Memorandum”).
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computers, dumb terminals, data displays, Internet browsers, Personal
Digital Assistants (PDAs), two-way pagers, wireless terminals, portable
telephones, etc., or any combination of the same.” Id. ¶ 28. Both server and
workstations are described generically as implementing or containing “the
electronic trading system application and application programming
interface.” Id. ¶¶ 26, 28; see also ¶ 30 (describing memory generally as a
storage device for storing a workstation program and preferably containing
“an electronic trading system application”). Accordingly, we are not
persuaded of error in the Examiner’s finding that the claimed additional
limitations that are devices are generic, conventional components
performing WURC activity of storing, retrieving, processing, and displaying
data.
As for the other additional limitations that are functional in nature,
those have been shown to be extra-solution activity comprising data
gathering and displaying, which do not amount to an inventive concept.
Cf. Diamond v. Diehr, 450 U.S. 175, 191–92 (1981) (“[I]nsignificant post-
solution activity will not transform an unpatentable principle into a
patentable process.”).
We therefore conclude that claim 1, considered as a whole, does not
include an inventive concept.
(e) Conclusion
For the reasons explained above, we conclude that claim 1 is directed
to an abstract idea that is not integrated into a practical application and does
not recite an inventive concept. Accordingly, we sustain the Examiner’s
rejection of claim 1 under 35 U.S.C. § 101. Because all the claims rise and
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fall with claim 1, we also sustain the § 101 rejection of all remaining claims
rejected under this ground.
2. Ground of Rejection Based on the Written Description Requirement
The Examiner rejects claims 1 and 8 as introducing new matter
because the claims have been amended to recite “populate trading interfaces
of remotely networked participants.” Final Act. 2−3. The Examiner reasons
that “[t]here is no disclosure of one system component which performs
remote access to another system component over a network and controls a
trading interface remotely.” Final Act. 3. The Examiner further states that
“[a]t best, information is transmitted from a first computer to a second
computer and that second computer collects and displays received data as is
known in the art.” Id. More particularly, the Examiner explains that the
remote device populates its own interface based on the received data.
Ans. 15.
Appellant challenges the Examiner’s rejection arguing that the
Examiner’s finding of what is understood by this limitation shows that the
Applicant had possession of the recited limitation. Appeal Br. 12.
Appellant identifies paragraphs 14, 26, and 31 of the Specification that
explain that the server transmits a GUI or other display screens to the user at
the user workstation and that the GUI distributed to the user allows the user
to interact with the electronic trading system application resident at the
server. Reply 8−9.
We agree with Appellant that the Specification fairly describes
“populating trading interfaces of remotely networked participants” because
it explains that the server-distributed GUIs (“trading interfaces”) running at
the workstations (“remotely networked participants”) provide the interface
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for the users to interact with the application running at the server.
Spec. ¶¶ 26, 31. The Examiner’s explanation yields an implied
understanding of “populate” to be limited to the displayed information at the
workstation. However, the Specification supports the broader interpretation
of that term as including the distribution or transmission of the GUI and the
data that is eventually displayed at the workstation. Accordingly, we do not
sustain the rejection of claims 1 and 8 for failure to comply with the written
description requirement of 35 U.S.C. § 112(a) (or 35 U.S.C. § 112, 1st
paragraph, pre-AIA).
CONCLUSION
We sustain the rejection of all pending claims under 35 U.S.C. § 101.
And although we do not sustain the rejection of claims 1 and 8 for failure to
comply with the written description, all claims remain rejected.
Accordingly, the Examiner’s rejection is AFFIRMED.
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DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 8 112(a) 1, 8
1–4, 7–11,
14, 15, 17–
27, 29–32,
34, 36, 38,
49–56, and
97–99
101 1–4, 7–11,
14, 15, 17–
27, 29–32,
34, 36, 38,
49–56, and
97–99

Overall
Outcome
1–4, 7–11,
14, 15, 17–
27, 29–32,
34, 36, 38,
49–56, and
97–99

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED