Rodgers, Kevin et al.

Patent Trials and Appeals Board

Sep 24, 2019

14252453 - (D) (P.T.A.B. Sep. 24, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/252,453 04/14/2014 Kevin Rodgers 081806-8104.US03 8204
98783 7590 09/24/2019
Perkins Coie LLP - DEN General
P.O. Box 1247
Seattle, WA 98111-1247
EXAMINER
SUBRAMANIAN, NARAYANSWAMY
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
09/24/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KEVIN RODGERS and JEFFREY DIRK WARD
________________

Appeal 2018-007712
Application 14/252,453
Technology Center 3600
________________

Before BARBARA BENOIT, JON M. JURGOVAN, and
RUSSELL E. CASS, Administrative Patent Judges.

CASS, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection under 35 U.S.C. § 101 of claims 1–4 and 6–20, which constitute all
of the claims pending in this Application. Appeal Br. 5.2 Claim 5 has been
cancelled. 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 lists Volbroker Limited of London as the real
party in interest. Appeal Brief filed April 16, 2018 (“Appeal Br.”) 3.
2 Rather than repeat the Examiner’s positions and Appellant’s arguments in
their entirety, we refer to the above mentioned Appeal Brief, as well as the
following documents for their respective details: the Non-Final Action
mailed March 20, 2017 (“Non-Final Act.”); the Examiner’s Answer mailed
May 22, 2018 (“Ans.”); and the Reply Brief filed July 20, 2018 (“Reply
Br.”).
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BACKGROUND
The present invention relates to a system and method for trading
option contracts, such as foreign currency option contracts. Abstract.
Appellant’s Specification explains that the prices for options are often
quoted in terms of volatility, which is a measure of the change in value of an
option contract. Spec. 3. Volatility may be calculated using the Black-
Scholes equation based on the spot rate (the current market rate of the
underlying transaction to the option contract), strike price (the price at which
the option purchaser can exercise the underlying transaction), time to expiry,
foreign currency interest rate, and domestic currency interest rate. Id. at 3,
14. After an option contract is bought or sold at a specified volatility, the
volatility is converted into a monetary purchase price using the Black-
Scholes equation. Id. at 3. A volatility surface may be created as a three-
variable relationship in which a volatility price can be calculated as long as a
given time to expire and given strike price are provided. Id. According to
the Specification, many large banks have internally implemented volatility
surface tradition system to allow small trades to be priced automatically and
reduce the manual workload for traders. Id. at 3–4.
The Specification explains that the invention provides an interactive
electronic trading system for options in financial instruments which enables
users to trade options under controlled credit risk parameters and with
mechanisms implemented which will maintain current pricing for option
contract bids and offers. Id. at 7. It explains that the invention is also
directed to a system for automatic price quotations for a requested option
contract, in which each user has an internal volatility surface, and the system
polls those internal volatility surfaces for prices on the requested option
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contract in order to provide the lowest price to the user requesting the option
contract. Id. at 8.
Claim 20 is illustrative of the claims at issue:
20. A method of operating a pricing system comprising:
polling, by a processor of the pricing system, a plurality of
workstations for preferences associated with an option contract
and volatility data associated with the option contract, wherein
the volatility data from each workstation is derived in real-time
through an interpolation of a volatility surface associated with
the option contract;
storing, by the processor of the pricing system, the volatility
data and the preferences in a database;
receiving, by the processor of the pricing system, a request
for a quote for the option contract from a requester;
dynamically generating prices on the option contract to
avoid holding a complete volatility surface in an associated
memory of the system server;
identifying, by the processor of the pricing system, from the
dynamically determined prices, a best price for the request,
wherein the best price is associated with one of the plurality of
workstations and the requester satisfies a credit requirement
associated with the best price that is indicated in the
preferences; and
communicating, by the processor of the pricing system, the
best price to the requester in response to the request.
Appeal Br. 20–21 (Claims Appendix).

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PRINCIPLES OF LAW
I. SECTION 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.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208,
216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012), and
Alice. Alice, 573 U.S. at 217–18 (citing Mayo, 566 U.S. at 75–77). In
accordance with that framework, we first determine what concept the claim
is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims
before us are drawn to the concept of intermediated settlement, i.e., the use
of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 130
S. Ct. 3218 (2010) (“Claims 1 and 4 in petitioners’ application explain the
basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 130 S. Ct. (2010));
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191
(1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India
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rubber, smelting ores” (id. at 183 n.7 (quoting Corning v. Burden, 56 U.S.
252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69
(citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept” sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
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“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
II. USPTO SECTION 101 GUIDANCE
The United States Patent and Trademark Office (“USPTO”) recently
published revised guidance on the application of § 101. USPTO,
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“2019 Guidance”). Under the 2019 Guidance, we first look
to whether the claim recites the following:
(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human activities 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)).
See 2019 Guidance, 84 Fed. Reg. 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:
(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 2019 Guidance, 84 Fed. Reg. at 56.

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ANALYSIS
I. THE SECTION 101 REJECTION
A. The Examiner’s Rejection and Appellant’s Contentions
In the Non-Final Office Action, the Examiner determined that claim
20 “is directed to interactive pricing and trading of option contracts which is
considered to be an abstract idea similar to the concepts that have been
identified by the courts such as creating and fulfilling contractual
relationships,” citing buySAFE, Inc. v. Google, Inc., 765 F.3d 1350 (Fed.
Cir. 2014). Non-Final Act. 3. According to the Examiner, claim 20 “fall[s]
squarely within the realm of abstract ideas as interpreted in the Alice
decision.” Ans. 3–4. The Examiner further determines that the steps of the
claimed process do not include “substantially more” than the abstract idea
because they “employ a generic system comprising a generic database and a
generic server suitably programmed to perform the claimed functions.” Id.
at 6.
Appellant argues that the claims are not directed to an abstract idea
under Alice Step 2A. Appeal Br. 7–12. Appellant contends that the
Examiner over-generalizes claim 20 by determining that it relates to
“interactive pricing,” “trading of options contracts,” or creating and fulfilling
contractual relationships.” Appeal Br. 7–11. According to Appellant, the
Examiner also “fails to consider the technical benefits of identifying a best
price based on prices that are dynamically generated to avoid holding a
complete volatility surface in a memory.” Id. at 9. Appellant further
contends that claim 20 is analogous to the claims found patent-eligible in
Trading Technologies Int’l, Inc. v. CQG, Inc., 675 Fed Appx. 1001 (Fed.
Cir. 2017) and Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880
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F.3d 1356 (Fed. Cir. 2018). Id. at 11–12. Finally, Appellant argues that the
claims overcome Alice Step 2B because they “provide far more than routine
and conventional functions” and do not wholly preempt any field. Id. at 12–
15.
B. Analysis under Step 2A, Prong 1, of the 2019 Guidance
Under Step 2A, Prong 1, of the 2019 Guidance, we first must
determine whether any judicial exception to patent eligibility is recited in the
claim. The 2019 Guidance identifies three judicially excepted groupings:
(1) mathematical concepts, (2) certain methods of organizing human activity
such as fundamental economic practices, and (3) mental processes. 2019
Guidance, 84 Fed. Reg. at 52–53. Based on existing Supreme Court and
Federal Circuit precedent, the 2019 Guidance has identified “methods of
organizing human activity” that may constitute an abstract idea, including
“fundamental economic principles or practices (including hedging,
insurance, mitigating risk); commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations); managing
personal behavior or relationships or interactions between people (including
social activities, teaching, and following rules or instructions).” See 2019
Guidance, 84 F3d. Reg. at 52.
Here, claim 1 falls into the categories of fundamental economic
practices and commercial or legal interactions, which are among the
categories of “organizing human activity” recognized by the 2019 Guidance.
See id. Claim 20 recites “a method of operating a pricing system” for
“receiving . . . a request for a quote of [an] option contract,” “identifying . . .
a best price for the request,” and “communicating . . . the best price to the
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requester.” Appeal Br. 20–21 (Claims Appendix). Buying and selling
options contracts, and determining prices for such contracts, are
longstanding economic practices. See Spec. 1. Buying and selling options
contracts are also commercial and legal interactions in the form of contracts
and legal obligations. These limitations therefore recite abstract ideas under
the 2019 Guidance. See 2019 Guidance, 84 F3d. Reg. at 52.
Claim 20 also recites “polling a plurality of workstations . . . for
preferences associated with an option contract and volatility data associated
with the option contract.” Appeal Br. 20 (Claims Appendix). Appellant’s
Specification explains that preferences can include credit filters defining the
counterparties with which an entity can deal, and volatility data can include
volatility prices on option contracts. Spec. 16, 17. Polling users to obtain
credit requirements and prices is incidental to the buying and selling of
options contracts, and thus qualifies as a fundamental economic practice and
as commercial and legal interactions. This polling step also can be
performed by a human through contacting different users to obtain the credit
requirements for parties with which they can deal and to obtain the volatility
prices on the requested option contract, and it therefore qualifies as a mental
process under the 2019 Guidance.
Claim 20 further recites that “the volatility data from each workstation
is derived in real-time through an interpolation of a volatility surface
associated with the option contract.” Appeal Br. 20 (Claims Appendix).
This interpolation is a mathematical calculation which qualifies as a
mathematical concept under the 2019 Guidance. It can also be performed in
the human mind or with pencil and paper, and therefore also qualifies as a
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mental process under the 2019 Guidance. Therefore, claim 20 recites one or
more abstract ideas.
Appellant argues that claim 20 is distinguishable from the claims
found to be patent-ineligible in previous cases, such as buySAFE, Alice, and
Bilski, because “none of the elements in claim 20 obligates any party or
entity to perform under a contract or to fulfill a contractual relationship.”
Appeal Br. 7; see Reply Br. 2–3. Appellant, however, misses the point of
these decisions. The key inquiry is not whether the claim includes express
language requiring a party to perform under a contract, but rather whether
the claim recites a fundamental economic practice or commercial or legal
interaction. Indeed, in buySAFE, the Court did not rely on the fact that the
claim included limitations that required parties to perform under a contract,
but rather that the contractual relations in the claim qualified as fundamental
economic practice. buySAFE, 765 F.3d at 1533–34 (explaining that the
Court in Alice and Bilski “relied on the fact that the contractual relations at
issue constituted ‘a fundamental economic practice log prevalent in our
system of commerce’”). See also Alice, 573 U.S. at 219–20 (concluding that
use of a third party to mediate settlement risk is a ‘‘fundamental economic
practice’’ and thus an abstract idea); Bilski, 130 S. Ct. 3218 (2010) (claims
reciting hedging found patent-ineligible because “[h]edging is a fundamental
economic practice long prevalent in our system of commerce”); 134 84 Fed.
Reg. 52 n.13 (citing cases in which a fundamental economic practice was
deemed a patent-ineligible abstract idea). If Appellant’s argument were
accepted, a clever draftsman could transform claims directed to fundamental
economic practices or commercial interactions into statutory subject matter
merely by omitting from the claim language any requirements to perform
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under a contract. See Alice at 224 (cautioning that the “determination of
patent eligibility “should not “depend simply on the draftsman’s art”).
We also do not find persuasive Appellant’s argument that the
Examiner “over-generalizes claim 20 by contending that claim 20 relates to
“interactive pricing,” “trading of option contracts,” or “creating and
fulfilling contractual relationships.” Appeal Br. 7–8; Ans. 2–3. Claim 20
recites “a method of operating a pricing system” for “receiving . . . a request
for a quote of [an] option contract,” “identifying . . . a best price for the
request,” and “communicating . . . the best price to the requester.” These
steps involve the pricing of options contract, which is a fundamental part of
the trading of an options contract, which creates a contractual relationship.
The additional limitations that Appellant points to, including polling for
credit preferences and volatility data and identifying the best price among
requesters that satisfy a credit requirement, were considered by the Examiner
and merely provide further details of the options pricing method of the
claim. See Ans. 4–6. We, therefore, disagree that the Examiner has
mischaracterized the claim.
C. Analysis under Step 2A, Prong 2, of the 2019 Guidance
Having determined that the claims recite a judicial exception, we next
determine whether the claims recite “additional elements that integrate the
[judicial] exception into a practical application.” See 2019 Guidance,
84 Fed. Reg. at 54; MPEP §§ 2106.05(a)–(c), (e)–(h). We agree with the
Examiner that the present claims do not recite sufficient additional elements
to integrate the claimed abstract ideas into a practical application. See Non-
Final Act. 5–6; Ans.6–12. Specifically, the additional elements include a
“processor,” “a plurality of workstations,” a “database,” and a “memory.”
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Appeal Br. 21–21 (Claims Appendix). We agree with the Examiner that
these are merely generic computer elements suitably programmed to execute
the claimed steps and are insufficient to integrate the judicial exception into
a practical application. Non-Final Act. 5; Ans. 6. The “mere recitation of a
generic computer cannot transform a patent-ineligible idea into a patent-
eligible invention.” Alice, 573 U.S. 223. See MPEP § 2106.05(a); MPEP §
2106.05(f)(2).
Appellant argues that claim 20 integrates the judicial exception into a
practical application because it “relate[s] to an efficient and particular
implementation to solve a problem of limiting arbitration on volatility
surface trading” by “polling preferences to obtain a credit requirement, and
identifying a best price for an option contract from the dynamically
determined prices where a ‘requester satisfies a credit requirement
associated with the best price that is indicated in the preferences.” Appeal
Br. 11. Appellant argues that their Specification explains that a “benefit of
the[se] ‘credit filters [is that they] promote[] system efficiency by displaying
only bids and offers on which the user may deal.’” Id. As discussed
previously, however, using credit information to determine if a user should
enter into an option contract with different requesters is an economic
practice which qualifies as an abstract idea. It also involves commercial
interactions because it is part of the process of pricing and trading option
contracts. And, the user of credit information in this manner does not
involve an improvement to the computer itself or other technology. Because
this claim limitation itself recites an abstract idea, it is not sufficient to
integrate the judicial exception into a practical application.
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Appellant next argues that claim 20 “recites a particular
implementation to improve a trading system’s efficiency by ‘dynamically
generating prices on the option contract to avoid holding a complete
volatility surface in an associated memory of the system server.’” Id. As
discussed above, however, generating prices on an option contract is a
fundamental economic practice and involves commercial interactions.
Appellant has not established that generating such prices “dynamically”
provides an improvement in the computer system itself or related technology
that would integrate the abstract idea into a practical application. Rather,
“dynamic” generation of prices on option contracts is merely a variant of a
fundamental economic activity – pricing and trading option contracts – and
therefore qualifies as an abstract idea.
Appellant next argues that claim 20 is analogous to the claims found
patent-eligible in Trading Technologies and Core Wireless. See Appeal Br.
11–12; Reply Br. 3–4. We do not find this argument persuasive. In Trading
Technologies, the Court found the claims patent-eligible because they
“require a specific, structured graphical user interface paired with a
prescribed functionality directly related to the graphical user interface’s
structure that is addressed to and resolves a specifically identified problem in
the prior state of the art.” Trading Technologies, 675 Fed. Appx. at 1004.
Similarly, in Core Wireless, the Court found that the claims at issue were
directed to “an improved user interface for electronic devices, particularly
those with small screens.” Core Wireless, 880 F.3d at 1362–63. Here, by
contrast, claim 20 is not directed to a graphical user interface but instead
recites steps for improving how the pricing of option contracts is carried out.
Claim 20 is therefore distinguishable from the claims at issue in those cases.
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Appellant further asserts that even if claim 20 is different from the
claims in Trading Technologies and Core Wireless, the underlying rationale
in those cases applies here because the Court in those cases stated that the
claimed invention “improved system efficiency” or created a “better and
specific” system. Reply Br. 3–4. Appellant argues that here too the claims
“promote system efficiency” by “recit[ing] a specific manner of limiting
arbitration on volatility surface trading. Id. We disagree. In Trading
Technologies and Core Wireless, the Court did not find the claims patent-
eligible merely because the claimed system was “better” or “improved
system efficiency,” but rather because they recited a specific user interface
that improved the functioning of the computer itself. See Trading
Technologies, 675 Fed. Appx. at 1004; Core Wireless, 880 F.3d at 1362–63.
Here, by contrast, the limitations of claim 20 relate to purported
improvements in pricing option contracts, not to improvements to a user
interface or to other functions of the computer itself.
Finally, Appellant’s argument that claim 20 “does not preempt every
way of providing ‘a trading system for option contracts’” is unpersuasive.
See Appeal Br. 15. We recognize that the Supreme Court has described “the
concern that drives this exclusionary principle [i.e., the exclusion of abstract
ideas from patent eligible subject matter] as one of pre-emption.” Alice,
573 U.S. at 216. However, characterizing preemption as a driving concern
for patent eligibility is not the same as characterizing preemption as the sole
test for patent eligibility. As our reviewing court has explained: “The
Supreme Court has made clear that the principle of preemption is the basis
for the judicial exceptions to patentability” and “[f]or this reason, questions
on preemption are inherent in and resolved by the § 101 analysis.” Ariosa
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Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015)
(citing Alice, 573 U.S. at 216). Although “preemption may signal patent
ineligible subject matter, the absence of complete preemption does not
demonstrate patent eligibility.” Id.
D. Analysis under Step 2B
Under Step 2B, we determine whether claim 20 includes additional
elements individually or in combination that provide an inventive concept
and, therefore, amount to significantly more than the exception itself. Here,
Appellant has not established that claim 20 includes any such “inventive
concept,” or that it adds any limitations beyond the judicial exception that
are not “well-understood, routine, or conventional” in the field. See MPEP
§ 2106.05(d).
We agree with the Examiner that the additional computer elements in
claim 20 that go beyond the judicial exception, namely a “processor,” “a
plurality of workstations,” a “database,” and a “memory,” are all well-
understood, routine and conventional. See Ans. at 5–6. Thus, claim 20
simply appends well-understood, routine, and conventional components
previously known to the industry, specified at a high level of generality, to
the judicial exception, which do not amount to not significantly more than
the judicial exception itself. See 2019 Guidance, 84 Fed. Reg. at 56.
Appellant again relies on Claim 20’s limitations of (1) “polling of
preferences to obtain a credit requirement,” (2) identifying a best price based
on a “requester satisfying a credit requirement associated with the best price
that is indicated in the preferences,” and (3) dynamically generating prices
on the option contract to avoid holding a complete volatility surface in an
associated memory of the system server,” arguing that these are “non-
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conventional” and “solve a problem with trading of options contract[s].”
Appeal Br. 13–14. As discussed previously, however, polling preferences to
obtain a credit requirement, identifying a best price among requesters who
satisfy the credit requirement, and dynamically generating prices on an
option contract are all fundamental economic practices and involve
commercial interactions for pricing and trading options contracts.
Appellant, therefore, has failed to sufficiently establish that claim 20
includes an inventive concept that goes beyond the abstract ideas recited in
the claim and therefore that amounts to significantly more than the judicial
exception itself.
Consequently, Appellant has not established that the Examiner erred
in rejecting claim 20 as being directed to patent-ineligible subject matter.
We likewise sustain this rejection, as well as the rejection of independent
claim 1 and dependent claims 2–4 and 6–19, which Appellant does not argue
separately.

DECISION
We affirm the Examiner’s rejection of claims 1–4 and 6–20 under 35
U.S.C. § 101 as directed to non-statutory subject matter.
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).

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CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–4, 6–20 § 101 1–4, 6–20

AFFIRMED