Nicholas Koustas et al.

Patent Trials and Appeals Board

Nov 2, 2021

2021003321 (P.T.A.B. Nov. 2, 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.
11/734,056 04/11/2007 Nicholas Koustas 310.0002 9280
76444 7590 11/02/2021
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
LIDDLE, JAY TRENT
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
11/02/2021 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):
uspto@setterroche.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NICHOLAS KOUSTAS, JOHN MIX, and
ALEXANDER OXMAN
Appeal 2021-003321
Application 11/734,056
Technology Center 3700
Before MICHAEL L. HOELTER, BENJAMIN D. M. WOOD, and
MICHELLE R. OSINSKI, Administrative Patent Judges.
WOOD, 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, 6–10, 12, and 14–24. See Final
Act. 1. Claims 2, 3, 5, 11, and 13 have been canceled. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies the real party in interest as AG 18, LLC. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a system and method for odds-based sports
wagering. Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An odds-based electronic sports wagering method in a
server in communication with a network device operated by a
bettor, the method comprising:
receiving, by a bettor interface module, an indication of a
time constraint from the network device for sports game events
available to the bettor for odds- based electronic sports
wagering;
identifying, by a player data collection engine according to
the time constraint: event schedules, player schedules, and
injury lists;
causing, by the bettor interface module, a betting interface
screen to be displayed to the bettor on a display device of the
network device, wherein the betting interface screen has a first
area and a second area, wherein causing the betting interface
screen to be displayed comprises:
dynamically generating, in the first area of the betting
interface screen: (i) a list of individual players available
for selection by the bettor to include in a lineup for a
given sports event, and (ii) corresponding odds
associated with each individual player in the list of
individual players, wherein the list of individual players
available for selection by the bettor for inclusion in the
lineup is restricted to individual players within the time
constraint received from the network device, and
automatically populating and dynamically updating
the list of individual players displayed in the first area of
the betting interface screen based at least in part on the
event schedules, player schedules, and injury lists
identified by the player data collection engine;
receiving, by the bettor interface module, at least one
selection from the network device via the betting interface
screen identifying multiple individual players from the list of
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individual players displayed in the first area of the betting
interface screen for inclusion in the lineup;
causing the multiple individual players selected by the
bettor to be displayed in the second area of the betting interface
screen, wherein the multiple individual players are not all from
the same team;
dynamically generating, by an odds generator module,
customized odds associated with the lineup as the lineup is
created by the bettor;
responsive to each change in the lineup received from the
network device via the betting interface screen, causing, by the
bettor interface module, the second area of the betting interface
screen to be iteratively reorganized to include only: (i) the
multiple individual players selected by the bettor for inclusion
in the lineup, and (ii) the customized odds associated with the
lineup, wherein: the customized odds associated with the
lineup:
are automatically generated by the odds generator
module in response to the at least one selection
identifying the multiple individual players from the list of
individual players,
are displayed on the betting interface screen
simultaneously with the list of available players and the
customized odds for the available players; and
are based, at least in part, on respective odds
associated with each of the multiple individual players
selected by the bettor for inclusion in the lineup,
the betting interface screen is configured to enable
the bettor to change the lineup for the given event by
selecting different combinations of individual players to
update the lineup using the list of individual players until
desired odds associated with the lineup are displayed in
the second area of the betting interface screen; and
the customized odds include varying odds for the
lineup beating a variation of point totals;
receiving, by the bettor interface module from the network
device via the betting interface screen, an at least one bet type, a
selection of one of the customized odds beating a selected point
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total, and an at least one bet amount based on the customized
odds associated with the lineup;
evaluating, by a bettor score determination module, player
event data for the lineup to determine a result for the at least
one bet type and the at least one bet amount;
causing, by the bettor interface module, a bet outcome
corresponding to the result for the at least one bet type and the
at least one bet amount to be displayed on the betting interface
screen; and
causing, by a bettor payout evaluator module, winnings to
be paid out to the bettor according to the bet outcome.

REJECTION
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 4, 6–10, 12, 14–24 101 Eligibility
OPINION
Appellant argues claims 1, 4, 6–10, 12, and 14–24 as a group. Appeal
Br. 8–18. We select claim 1 as representative of the group, and decide the
appeal of this rejection on the basis of claim 1 alone. 37 C.F.R.
§ 41.37(c)(1)(iv).
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 § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are
not patentable. Alice Corp. v. CLS Bank Int'l, 573 U.S. 208, 216 (2014). To
determine whether a claim falls within a judicially recognized exception to
patent eligibility under § 101, we apply the two-step framework set forth in
Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and reaffirmed in Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566
U.S. at 75–77). For the first Alice step (the USPTO’s Patent Subject Matter
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Eligibility guidance, MPEP § 2106, designates the first step of Alice as Step
2A2), we determine whether the claims at issue are directed to a patent-
ineligible concept such as an abstract idea, law of nature, or natural
phenomenon. Alice, 573 U.S. at 217 (citing Mayo, 566 U.S. at 78–79). If
so, we advance to the second Alice step (Step 2B of the USPTO’s Patent
Subject Matter Eligibility guidance) where “we consider the elements of
each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application” of the otherwise patent-ineligible concept. Id.
(quoting Mayo, 566 U.S. at 78–79).
We also follow the USPTO’s additional guidance on applying Step
2A. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Revised Guidance”).3 The Revised Guidance
establishes a “two-prong inquiry” for determining whether a claim is
directed to a judicial exception. Id. at 54. In prong one, we determine
whether the claim recites a judicial exception, such as an abstract idea. Id.
The groupings of abstract ideas listed in the guidance include
“[m]athematical concepts,” “[c]ertain methods of organizing human
activity,” and “[m]ental processes.” Id. at 52. If the claim recites a judicial
exception, we look to whether the claim recites additional elements that

2 Under the USPTO’s Step 1, we determine whether the claimed invention
falls within one of the four statutory categories of invention under 35 U.S.C.
§ 101: processes, machines, manufactures, and compositions of matter.
MPEP § 2106 III. Here, claim 1 recites a process, thus satisfying USPTO
Step 1.
3 Available at https://www.govinfo.gov/content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf.
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integrate the judicial exception into a practical application. Id. at 50. Thus,
a claim is directed to a judicial exception only if the claim recites a judicial
exception and does not integrate that exception into a practical application.
Id. “Integration into a practical application” requires an additional element
or a combination of additional elements in the claim that 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 exception. Id. at 54–55.
If we determine that the judicial exception is not integrated into a
practical application, we proceed to Step 2B and determine whether the
claim adds a specific limitation beyond the judicial exception that is not
well-understood, routine, and conventional activity in the field, or,
alternatively, whether the claim simply appends well-understood, routine,
and conventional activities previously known to the industry, specified at a
high level of generality, to the judicial exception. Revised Guidance, 84
Fed. Reg. at 56.
Step 2A, Prong 1
The Examiner finds that claim 1 recites a judicial exception because
several of the limitations of claim 1 recite mental processes and certain
methods of organizing human activity. Final Act. 3–4. The Examiner
specifically finds that some of the recited limitations “can be done by two
people”—e.g., a bookie and a bettor—“discussing a group of players and
suggesting odds for those players given their histories.” Id. at 4. The
Examiner also finds that claim 1 “merely list[s] out rules for how to organize
a wagering game and then carrying out said wagering game for a payout.”
Id. at 4.
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Appellant disputes that claim 1 recites a judicial exception. Appellant
asserts that the limitations that the Examiner identifies as mental processes
“could not be practically performed by the human mind.” Appeal Br. 9–10.
Appellant further identifies certain limitations in claim 1—e.g., those
limitations directed to displaying a betting interface screen with first and
second areas; “dynamically generating” in the first area a list of available
players and odds associated with the players; and displaying in the second
area bettor-selected players and their associated odds—that Appellant
alleges are:
directed to processes performed by a server for operation of an
improved specialized graphical user interface (GUI)—the
betting interface screen on the display device of the network
device—facilitating electronic odds-based sports wagering to
facilitate receiving, transmitting and displaying data to bettors
operating network devices.
Id. Appellant also contends that claim 1 recites “particularly claimed
processes steps performed by the recited computing and communications
devices for automatically changing the state of displayed information on the
betting interface screen and without any human involvement.” Id.
The Examiner responds that “the claims of the invention are directed
more towards a method of wagering and selecting members to be part of a
fantasy sports team and updating of the odds,” and the “interface screen that
is displayed is merely a tool that is used to present an abstract idea on a
computer.” Ans. 4. The Examiner also reiterates that “[e]ach of the
identified abstract idea parts of the claim as noted in the final Office action
could be performed between a player and a bookie discussing a proposed
bet.” Id.
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We agree with the Examiner that claim 1 recites a judicial exception.
First, the Examiner identifies as a mental process, among other limitations
(Final Act. 2–4), the step of “receiving [from a bettor] a time constraint . . .
for sporting events available to the bettor” for wagering, and the step of
“identifying . . . according to the time constraint: event schedules, player
schedules, and injury lists.” Appeal Br. 20 (Claims App.). That is, the
bettor identifies when the bettor wishes to wager on a sporting event and the
claimed method identifies which events and players are available during that
time. Identifying a time period of interest (“time constraint”) and
identifying events and players available during that period, can be performed
in the human mind, or with the aid of pen and paper. For example, a bettor
can inform a bookie—e.g., in person or in writing—that the bettor is
interested in making a fantasy-football wager based on football games taking
place on a particular Sunday, and the bookie can let the bettor know which
players are available to be selected during that period, as well as the odds
that would be applicable for that selection.
Appellant asserts that these steps cannot practically be performed in
the human mind or with the aid of pen and paper, but does not explain why
this is the case. To the extent that Appellant believes that the amount of
information is too voluminous or the calculations too complex, we note that
claim 1 is not limited to any particular number of events or players,4 or to
any particular method of calculating odds.5 Thus, performing these steps

4 Claim 1 recites “identifying multiple individual players” for the bettor’s
lineup, which requires a minimum of two players.
5 Claim 1 only requires that the customized odds “are based at least in part,
on respective odds associated with each of the multiple individual players
selected by the bettor for inclusion in the lineup.” Appeal Br. 21 (Claims
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mentally or with pen and paper may encompass minimal effort on the part of
the bettor and bookie. Moreover, “the fact that the required calculations
could be performed more efficiently via a computer does not materially alter
the patent eligibility of the claimed subject matter.” FairWarning IP, LLC v.
Iatric Sys., Inc., 839 F.3d 1089, 1098 (Fed. Cir. 2016) (citation and
quotation marks omitted).
Other limitations in claim 1 likewise can be performed in the human
mind or with the aid of pen and paper. For example, claim 1 recites the
steps of receiving from the bettor a selection of “multiple individual players”
for inclusion in the bettor’s lineup; and “dynamically generating . . .
customized odds associated with the lineup as the lineup is created by the
bettor.” Appeal Br. 20 (Claims App.). Neither the claim nor the
Specification specifies how the odds are generated (other than that they be
“dynamically” generated, which refers to when the generation occurs (when
the players are selected), rather than how). Thus, as with the limitations
discussed above, these steps can be performed by a bettor and a bookie in
person or in writing, and therefore are mental processes.
In summary, claim 1 recites mental processes, which are a recognized
category of abstract ideas.6 Revised Guidance, 52. Therefore, we agree
with the Examiner that claim 1 recites a judicial exception.

App.). Claim 1 does not specify how the respective odds for each individual
player are determined, or how the odds for the lineup are determined based
on those of the individual players.
6 Because we agree with the Examiner that claim 1 recites mental processes,
we do not consider the Examiner’s finding that it also recites certain
methods of organizing human activity.
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Step 2A, Prong 2
Having determined that claim 1 recites a judicial exception, we next
consider whether claim 1 recites additional elements that integrate the
judicial exception into a practical application.
The Examiner finds that the additional elements of claim 1 do not
integrate the judicial exception into a practical application because “the
abstract idea is merely applied to a generic computing environment such as
‘a network device’ and ‘interface screen.’” Final Act. 4. The Examiner
further finds the limitations in claim 1 that include “modules” and “engines”
are “merely ways to accomplish the abstract idea in a computer
environment.” Id.
We agree with the Examiner. Limitations that “merely include[]
instructions to implement an abstract idea on a computer, or merely use[] a
computer as a tool to perform an abstract idea,” do not integrate the abstract
idea into a practical application. Revised Guidance, 55; MPEP § 2106.05(f).
The limitations in claim 1 directed to computer implementation of the
claimed method are recited at a high level of generality, and thus indicate the
use of a general purpose computer used as a tool to perform the claimed
judicial exception. For example, the method of claim 1 does not specify that
particular hardware is needed, but rather recites generic hardware such as a
“server” in communication with a “network device.” Appeal Br. 20 (Claims
App.). The Specification indicates that any general purpose computer would
suffice for these components. Spec. ¶ 20, Fig. 1.7 Claim 1 also recites

7 To be consistent with Appellant’s Appeal Brief, our citations to the
Specification are to the published version of the application, U.S. Pat. Appl.
2008/0254876 A1.
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various software components, or “modules,” used to perform the claimed
method, but these modules are claimed and described using purely
functional terms, again indicating that they can be performed using general-
purpose computer technology. See, e.g., Spec. ¶¶ 21–25, Fig. 2.
Other limitations in claim 1 are drawn to receiving, storing,
transmitting, displaying, and outputting data or information, and therefore
constitute insignificant extra-solution activities that do not integrate the
judicial exception into a practical application. See MPEP § 2106.05(g)
(receiving, storing, and updating data are insignificant extra-solution
activities); Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed.
Cir. 2016) (holding that “merely selecting information, by content or source,
for collection, analysis, and display does nothing significant to differentiate
a process from ordinary mental processes, whose implicit exclusion from
§ 101 undergirds the information-based category of abstract ideas.”).
For example, claim 1 recites “causing . . . to be displayed”—i.e.,
displaying—a betting interface screen having a first area and a second area.
The claim further requires “dynamically generating,” in the first area, a list
of available players for a given event, and then “automatically populating”
and “dynamically updating” this list. Based on the Specification, these steps
apparently require transmitting a list of players to the bettor’s network
device for display on the device, and then transmitting and displaying
updates as necessary. See Spec. ¶¶ 28, 30–31, 34–35, 39, Figs. 4–7.
Limitations drawn to the bettor’s selection of players for a lineup, including
the bettor’s changing of the lineup, and the resulting display of the bettor’s
lineup and corresponding odds; receiving a bet type and amount; displaying
the bet outcome; and paying out winnings also can be considered drawn to
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receiving, storing, transmitting, displaying, and outputting data or
information, and therefore constitute insignificant extra-solution activities
that do not integrate the judicial exception into a practical application.
We have considered Appellant’s arguments asserting that any judicial
exception is integrated into a practical application, but find these arguments
unpersuasive. Appellant argues that claim 1 is directed to “an improved
specialized graphical user interface (GUI)—the betting interface screen on
the display device of the network device—facilitating electronic odds-based
sports wagering to facilitate receiving, transmitting and displaying data to
bettors operating network devices.” Appeal Br. 10; see id. at 11 (same). In
so arguing, Appellant asserts that claim 1 is analogous to the claims found
patent eligible in Core Wireless Licensing v. LG Electronics, Inc., 880 F.3d
1356 (Fed. Cir. 2018). Id. at 11–16. According to Appellant, “claim 1
contains ‘precise language delimiting the type of data to be displayed and
how to display it,’” because “the method of claim 1 causes the betting
interface screen to be displayed to the bettor in a first area with a first set of
specifically enumerated data, and in a second area with a second set of
specifically enumerated data.” Id. at 11–12 (quoting Core Wireless, 880
F.3d at 1356). The Examiner responds that “the claims are directed toward
improving the player’s experience by allowing the player to choose various
players for their team and seeing updated odds as they [are] selected, not a
better way to present information on a GUI.” Ans. 4.
We disagree with Appellant that claim 1 is analogous to the claims
found patent-eligible in Core Wireless. In Core Wireless, the representative
claim was directed to a computing device with a display screen “configured
to display on the screen a menu listing one or more applications” as well as
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“an application summary that can be reached directly from the menu.” Id. at
1359. The claim recited that “the application summary displays a limited list
of data offered within the one or more applications,” and that “the
application summary is displayed while the one or more applications are in
an un-launched state.” Id. The court determined that the claim was directed
to “a particular manner of summarizing and presenting information in
electronic devices.” Id. at 1362. The court noted, for example, that the
claim “recited that the [application] summary window “is displayed while
the one or more applications are in an un-launched state,’ a requirement that
the device applications exist in a particular state.” Id. at 1363.
In sum, the Core Wireless court determined that the claim was not
directed to an abstract idea because it specifies how the computing device
operates in the course of presenting data. Claim 1 at issue here is different.
Claim 1 specifies that certain information be displayed in a “first area” of the
bettor interface screen, and other information be presented in a “second
area” of the screen, but does specify how the computer system operates to
provide that data. Simply displaying different data in different parts of a
display screen is a routine function of general-purpose computer systems.
In sum, having reviewed the additional limitations individually and as
an ordered combination, we agree with the Examiner that claim 1 is directed
to a judicial exception.
Step 2B
Having determined that claim 1 is directed to a judicial exception, we
next consider under Step 2B whether claim 1 includes additional elements or
a combination of elements that provide an “inventive concept,” i.e., whether
claim 1 includes specific limitations beyond the judicial exception that are
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not “well-understood, routine, conventional” in the field. Revised Guidance,
84 Fed. Reg. at 56. In doing so, we recognize that “[t]he inventive concept
inquiry requires more than recognizing that each claim element, by itself,
was known in the art,” because “an inventive concept can be found in the
non-conventional and non-generic arrangement of known, conventional
pieces.” BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827
F.3d 1341, 1350 (Fed. Cir. 2016).
Viewing the additional limitations in claim 1 individually and as an
ordered combination, we agree with the Examiner that they do not provide
an inventive concept that renders the judicial exception patent eligible. Final
Act. 4–5. As discussed above, claim 1 recites the use of generic computer
components and computer operations. Such limitations, considered both
individually and as an ordered combination, are well-understood, routine,
and conventional in the field, and therefore do not provide an inventive
concept. See Bancorp Servs., L.L.C. v. Sun Life Assurance Co. of Can.
(U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he use of a computer in an
otherwise patent-ineligible process for no more than its most basic
function––making calculations or computations––fails to circumvent the
prohibition against patenting abstract ideas and mental processes.”).
CONCLUSION
The Examiner’s rejection is affirmed.
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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4, 6–10,
12, 14–24
101 Eligibility 1, 4, 6–10,
12, 14–24

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