Sloan, J. Nathaniel. et al.

Patent Trials and Appeals Board

Oct 4, 2019

14757978 - (D) (P.T.A.B. Oct. 4, 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.
14/757,978 12/24/2015 J. Nathaniel Sloan 40189/03702(12DIS074MEDI 7085
94470 7590 10/04/2019
DISNEY ENTERPRISES, INC.
c/o Fay Kaplun & Marcin, LLP
150 Broadway
Suite 702
New York, NY 10038
EXAMINER
LIM, SENG HENG
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
10/04/2019 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):
fhall@fkmiplaw.com
mmarcin@fkmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte J. NATHANIEL SLOAN and DAVID MICHAEL FISHEL

____________

Appeal 2019-001676
Application 14/757,978
Technology Center 3700
____________

Before BRETT C. MARTIN, WILLIAM A. CAPP, and
BRANDON J. WARNER, Administrative Patent Judges.

CAPP, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
J. Nathaniel Sloan and David Michael Fishel (hereinafter collectively
“Appellant”)1 seek our review under 35 U.S.C. § 134(a) of the final rejection
of claims 21–38 as unpatentable under 35 U.S.C. § 101 as directed to a
judicial exception to patent-eligible subject matter. 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(a). Disney Enterprises, Inc. is the Applicant and real party in
interest. Appeal Br. 2.
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THE INVENTION
Appellant’s invention employs computer technology to facilitate
selection of fantasy sports teams. Spec. ¶¶ 17, 22. Claim 21, reproduced
below, is illustrative of the subject matter on appeal.
21. A method for a fantasy sports application, comprising:
executing, by a host processor, a fantasy sports auction draft
for a fantasy sports league that includes a plurality of fantasy
sports teams, wherein the fantasy sports auction draft includes a
plurality of sports players available to be nominated by the
plurality of fantasy sports teams;
receiving, by a host processor, at least one parameter value
for each of the plurality of sport players;
determining, by the host processor, a score value for each of
the plurality of sport players as a function of the at least one
parameter value;
grouping each of the sport players into one of a plurality of
tiers, each of the tiers having a tier value determined based on
an upper score value threshold and a lower score value
threshold, the upper score value threshold and the lower score
value threshold for each of the tiers being determined as a
function of the score values for each of the sport players,
wherein a plurality of the sport players are grouped into each of
the tiers, each of the sport players that is grouped into one of
the tiers having a score value that is greater than the lower score
value threshold of the one of the tiers and less than the upper
score value threshold of the one of the tiers;
receiving, by the host processor from a user device, a
request for data for a first player of the plurality of sport
players, wherein the user device corresponds to one of the
plurality of fantasy sports teams;
providing, by the host processor to the user device, data for
the first player including at least identity data and a first tier
value corresponding to the one of the plurality of tiers into
which the first player is grouped;
determining, by the host processor, other sport players of
the plurality of sport players having the first tier value;
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determining, by the host processor during the execution of
the fantasy sports auction draft, recommendation data for the
first player to be nominated at the fantasy sports auction draft,
as a function of a first number of remaining sports players of
the other sport players available in the fantasy sports auction
draft having the first tier value, wherein the recommendation
data comprises at least a maximum bid value for the first
player; and
transmitting, during the execution of the fantasy sports
auction draft, the recommendation data to the user device.
OPINION
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 courts recognize certain judicial exceptions to Section 101,
namely: (1) laws of nature, (2) natural phenomena, and (3) abstract ideas.
See Mayo Collaborative Svc. v. Prometheus Labs, Inc., 566 U.S. 66, 70–71
(2012).
The Supreme Court has set forth “a framework for distinguishing
patents that claim laws of nature, natural phenomena, and abstract ideas
from those that claim patent-eligible applications of those concepts.” Alice
Corp. Pty. Ltd. v. CLS Bank Int’l, 573 U.S. 208, 217 (2014) (citing
Mayo, 566 U.S. at 72–73). According to the Supreme Court’s framework,
we must first determine whether the claims at issue are directed to one of
those concepts. Id. If so, we must secondly “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.” Id.
The Supreme Court characterizes the second step of the analysis as “a
search for an ‘inventive concept’ — i.e., an element or combination of
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elements that is ‘sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself.”’
Alice, 573 U.S. at 217–18 (alterations in original) (quoting Mayo, 566 U.S.
at 72–73). Where the claim is directed to an abstract idea that is
implemented on a computer, merely stating the abstract idea while adding
the words “apply it” is not enough to establish such an inventive concept.
See Alice, 573 U.S. at 223.
[I]f that were the end of the § 101 inquiry, an applicant could
claim any principle of the physical or social sciences by reciting
a computer system configured to implement the relevant
concept.
Id. at 224.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Guidelines”). Under such guidelines, in
conducting step one of the Alice framework, 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 interactions 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)).
In other words, under prong 1 of an abstract idea analysis, we look to
whether the claim recites an abstract idea. Then, if it does, under prong 2,
we look at the claim, as a whole, and determine whether the claim is
“directed to” the abstract idea or, instead, is “directed to” a “practical
application” of the abstract idea.
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Step 1, Prong 1
The 2019 Guidelines identify three key concepts as abstract ideas:
(a) mathematical concepts including “mathematical
relationships, mathematical formulas or equations,
mathematical calculations”;
(b) certain methods of organizing human activity, such as
“fundamental economic principles or practices,” “commercial
or legal interactions,” and “managing personal behavior or
relationships or interactions between”; and
(c) mental processes including “observation, evaluation,
judgment, [and] opinion.”
2019 Guidelines.
With respect to the first step, the Examiner determines that the claims
are directed to an abstract idea. Final Action 9. According to the Examiner,
the steps are directed to an idea of itself similar to that of Electric Power
Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) and Digitech
Image Technologies, LLC v. Electronics For Imaging, Inc., 758 F.3d 1344
(Fed. Cir. 2014). Id. The Examiner further finds that the steps of claim 21
can be performed using pen and paper. Id.
Collecting and analyzing information, without more, are treated as
essentially mental processes within the abstract idea category. FairWarning
IP, LLC v. Iatrie Systems, Inc., 839 F.3d 1089, 1093 (Fed. Cir. 2016) (citing
Elec. Power Grp., 830 F.3d at 1353).
Methods which can be performed entirely in the human mind
are unpatentable not because there is anything wrong with
claiming mental method steps as part of a process containing
non-mental steps, but rather because computational methods
which can be performed entirely in the human mind are the
types of methods that embody the “basic tools of scientific and
technological work” that are free to all men and reserved
exclusively to none.
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Cybersource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1373 (Fed.
Cir. 2011); See also Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d
1138, 1147 (Fed. Cir. 2016)) (explaining that analyzing information by steps
people go through in their minds, or by mathematical algorithms, without
more, are essentially mental processes within the abstract-idea category).
In the instant case, claim 21 recites, in abbreviated form, using a
computer processor in conjunction with a user device to:
execute . . . [an] auction draft;
receive . . . [a] value;
determine . . . [a] value;
group . . . players . . . based on a . . . value threshold;
receive . . . a request for data;
provide . . . data;
determine . . . other sport players;
determine . . . data;
transmit . . . data.
Claims App.
On its face, the instant application seeks to automate “pen and paper
methodologies” to conserve human resources and improve computational
efficiency under time constraints imposed by a fantasy sports auction
environment. Spec. ¶ 7.2 This is a quintessential “do it on a computer”
patent application: it acknowledges that data related to player’s auction

2 “[R]equires that the owners perform many manual calculations . . . This is
often very time-consuming and may result in poor decisions.” Id.
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values was previously collected and analyzed manually and simply proposes
doing so with a computer. Spec. ¶¶ 5–6.
[W]ithin the conventional auction format for selecting a fantasy
sports team, the users are required to determine, manually, the
players on which to bid, as well as the amount to bid for each of
the players.
Id. ¶ 10. Our supervising court maintains that such claims are directed to
abstract ideas. See, e.g., Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017) (holding abstract claims
“directed to . . . collecting, displaying, and manipulating data”); Elec. Power
Grp., 830 F.3d at 1353–54) (holding abstract claims directed to “collecting
information, analyzing it, and displaying certain results of the collection and
analysis”). That the automation can make player selection under the time
exigencies of a fantasy sports auction draft more time efficient is laudable,
but it does not render it any less abstract.
The claims here relate to facilitating user behavior by collecting data,
processing the data, and notifying the user. Claims App. As such, the
method recites an abstract idea under the principles espoused in
FairWarning.
Step 1, Prong 2
Under Prong 2 of Step 1 of the 2019 Guidelines, we do not assume
that such claims are directed to patent-ineligible subject matter because “all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas.” In re TLI Commc’ns LLC
Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016) quoting Alice. Instead,
“the claims are considered in their entirety to ascertain whether their
character as a whole is directed to excluded subject matter.” McRO, Inc. v.
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Bandai Namco Games America Inc., 837 F.3d 1299, 1312 (Fed. Cir. 2016).
If the claims are not directed to an abstract idea, the inquiry ends. 2019
Guidelines. If the claims are “directed to” an abstract idea, then the inquiry
proceeds to the second step of the Alice framework. Id.
Consequently, we consider whether the claimed fantasy sport draft
method includes additional elements that integrate the judicial exception into
a practical application. A claim that integrates a judicial exception into a
practical application 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. 2019 Guidelines.
Here, Appellant merely takes a known, manual practice of collecting
and analyzing data and then applies generic computer and tele-
communications technology to speed up the process of data acquisition and
analysis. Although automating tasks that humans are capable of performing
may be patent eligible if properly claimed (See McRO, 837 F.3d at 1313),
we are not persuaded that merely expediting the data collection and analysis
in a fantasy sports auction environment amounts to a technological
improvement analogous to that of McRO and Enfish. Here, the method of
claim 21 generally comprises functional method steps, such as: (1)
receiving, (2) determining, (3) grouping, (4) transmitting, and (5) executing.
Claims App. The method collects, processes, and presents information to
expedite making sports auction decisions under time constraints imposed by
the auction environment.
The prospect that Appellant’s method uses a computerized “tool” does
not render the claims less abstract. An abstract idea does not become
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nonabstract by limiting the invention to a particular technological
environment. Intellectual Ventures I, 792 F.3d at 1367; see also Affinity
Labs of Texas, LLC v. DirecTV, LLC, 838 F.3d 1253, 1259 (Fed. Cir. 2016)
(Merely limiting the field of use of the abstract idea to a particular existing
technological environment does not render the claims any less abstract); see
also Alice, 573 U.S. at 224 (the fact a computer exists in the physical realm
is beside the point). Unlike Enfish, the focus of the instant claims is not on
improving a computer, but rather on a process for which computers are
invoked merely as a tool. See Enfish, 822 F.3d at 1335–36.
We are fully in accord with the following observation of the Examiner
in the final rejection:
[T]he steps can be performed using pen and paper, wherein a
person can gather parameters for each sport players and
determine a score value for each of the sport players and place
each sport players in the appropriate tiers. The person can
determine recommendation data for the first player to be
nominated at an auction draft with at least a maximum bid
value for the first player and communicating such
recommendation data to a user.
Final Action 9–10. Appellant presents neither evidence nor persuasive
technical reasoning that refutes the Examiner’s finding that claim 21 merely
automates a pen and paper process. See generally Appeal Br., Reply Br.
The claims, thus, fail to integrate the judicial exception into a practical
application and, therefore, is “directed to” an abstract idea.
Step 2
Turning to step 2 of the Alice/Mayo analysis, we look more precisely
at what the claim elements add in terms of whether they identify an
“inventive concept” in the application of the ineligible matter to which the
claim is directed to. See SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
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1167 (Fed. Cir. 2018). “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].’” Alice, 573 U.S. at 221
(quoting Mayo, 566 U.S. at 77–78). Those “additional features” must be
more than well-understood, routine, conventional activity. Mayo, 566 U.S.
at 79.
Under step two of the Alice/Mayo framework, the Examiner
determines that the steps of Appellant’s auction method, considered both
individually and in combination, do not amount to significantly more than
the abstract idea. Final Action 10. Specifically, the Examiner finds that:
[N]o element or combination of elements is sufficient to ensure
any claim of the present application as a whole amounts to
significantly more than one or more judicial exceptions, as
described above. For example, such recitations of utilization of
a processor used to apply the abstract idea merely implements
the abstract idea at a high level of generality and fail to impose
meaningful limitations to impart patent-eligibility. These
elements and the mere processing of data using these elements
do not set forth significantly more than the abstract idea itself
applied on general purpose computing devices. Taking the
physical elements individually and in combination, the
computer-based components perform purely generic computer-
based functions. As such, the significantly more required to
overcome the 35 U.S.C. 101 hurdle and transform the claimed
subject matter into a patent-eligible abstract idea is lacking.
Id.
Appellant argues that claim 21 amounts to significantly more than an
abstract idea, analogizing the instant case to Bascom Global Internet
Services, Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016) and
Amdocs (Israel) Limited v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir.
2016). Appeal Br. 10, 13.
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The Appellant respectfully submits that the claims at issue
satisfy step two of the Alice test for the same reasons that the
claims at issue in Bascom satisfied step two of the Alice test.
For instance, just like the claims at issue in Bascom, the claims
at issue in the present case contain an inventive concept because
the claims recite an unconventional improvement to a
technological process and the claims do not raise any
preemption concerns.
Id. Appellant’s argument quickly falls to the ground because there is no
factual basis for drawing an analogy from either Bascom or Amdocs to the
instant case.
According to Appellant:
[T]he inventive concept recited in the claims of automatically
generating and providing to a user device, real-time
recommendations including a player to be nominated and a
corresponding maximum bid for an auction type fantasy draft
during the execution of the fantasy draft based on the players
remaining in the current draft address the known deficiencies of
conventional fantasy sport applications and corresponding
conventional tools of not being able to provide a
recommendation that adapts to the particular players remaining
in the selection pool in a timely enough fashion to be relevant
to the current stage of the fantasy draft.
Id. at 11. Appellant characterizes such as an “improvement to a
technological process.” Id. at 10. We disagree. The “process” is not a
“technological process,” rather, and as previously discussed, it is essentially
a mental process that can be performed using pen and paper where
computers are used merely as a tool. See Intellectual Ventures I LLC v.
Symantec Corp., 838 F.3d 1307, 1331 (Fed. Cir. 2018) (explaining that
claims to an abstract idea that merely uses computers as tools are not patent
eligible).
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The mere fact that Appellant’s method uses a computer tool that may
be better than another fantasy auction computer tool, without more, fails to
establish that the alleged “additional features” in the claim amount to more
than well-understood, routine, conventional activity (i.e., using a computer
as a “tool”). Mayo, 566 U.S. at 79; Intellectual Ventures, 838 F.3d at 1331.
Appellant alleges a problem in the prior art with respect to the
location of facilities that cause prior art systems to provide data analysis in
an untimely manner.
Conventional tools exist in a location that is external to the
conventional fantasy sports draft application. Accessing an
external source requires time and during a fantasy draft, time is
of the essence. Time is such an important factor in a fantasy
draft because draft transactions are fast paced due to time limits
expressly enforced by the rules of fantasy sports auction drafts.
Appeal Br. 10–11. Appellant’s solution is to use conventional network
connectivity techniques to get fantasy auction data analysis into a user’s
hands in a more timely fashion. Appellant’s user device is nothing more
than a conventional computer terminal, laptop, personal digital assistant,
tablet, or cell phone. Spec. ¶ 22. The claimed “host processor” is nothing
more than a conventional server on a network such as the Internet. Id.
¶¶ 20–21. The host processor provides “conventional functionalities for the
user device.” Id. ¶ 23.
Appellant’s steps of identifying, generating, receiving, suspending,
and resuming merely tell a computer to “apply” the abstract idea of
claim 21. However, it does not matter how innovative Appellant’s abstract
idea is. Id. A claim for a new abstract idea is still an abstract idea.
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir.
2016).
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There is no indication in the Specification that Appellant has achieved
an advancement or improvement in computer and/or telecommunications
technology. See generally Spec. Appellant merely uses computer
technology in a network environment as a tool to bring information to the
user in a timely fashion.
Essentially, all Appellant has done here is automate the manual
process of data analysis in a fantasy auction environment and deliver the
result of that analysis to a user in a network environment. This is
quintessentially “collecting information, analyzing it, and displaying certain
results of the collection and analysis.” Electric Power Group, 830 F.3d
at 1353. Appellant’s method recites an “abstract idea” for which computers
are invoked merely as a tool. Intellectual Ventures, 838 F.3d at 1331. In
short, claim 21 is directed to an abstract idea that is implemented on a
computer in a manner that merely states the abstract idea while adding the
words “apply it.” See Alice, 573 U.S. at 223. This is not sufficient for
patent eligibility. Id.
Appellant argues that claim 21 does not preempt or monopolize any
abstract concept. Appeal Br. 10, This argument is not persuasive as it is
well settled that “[w]here a patent’s claims are deemed only to disclose
patent ineligible subject matter under the Mayo framework, as they are in
this case, preemption concerns are fully addressed and made moot.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
We have considered Appellant’s remaining arguments and find them
to be without merit.3 Accordingly, for the above reasons, the recited

3 In particular, we find the procedural objection that Appellant raises with
respect to the degree of detail and clarity in the Examiner’s rejection to be
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elements of claim 21, considered individually and as an ordered
combination, do not constitute an “inventive concept” that transforms
claim 21 into patent-eligible subject matter. On this record, we affirm the
Examiner’s § 101 rejection of claim 21.
Claims 26 and 27.
Claim 26 depends directly from claim 24 and indirectly from
claim 21, adding the following limitations:
determining, by the processor, an initial bid value; and
adjusting, by the processor, the initial bid value as a
function of the maximum bid value and a comparison of the
remaining number of sport players in the corresponding tier
value of the first player to a tier threshold value indicative of a
percentage of a total number of sport players in the
corresponding tier value.
Claims App. Claim 27 depends from claim 26 and adds the limitation:
wherein the initial bid value is determined for a first fantasy
sports team as a function of prior bid values placed by at least
one second fantasy sports team on the first player.
Id.
Appellant argues that claims 26 and 27 contain an additional inventive
concept over and above that of claim 21. Appeal Br. 15.
The second inventive concept provided by the recitation of
claims 26 and 27 is similar to the first inventive concept but
relates to bidding on a player that has already been nominated

without merit. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011)
(explaining that the PTO carries its procedural burden of establishing a
prima facie case when its rejection notifies the applicant by stating the
reason for a rejection, together with such information and references as may
be useful in judging of the propriety of continuing prosecution). We have
reviewed the rejection and find that it complies with the governing statute.
Id.; 35 U.S.C. § 132.
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by another fantasy sports team participating in the fantasy
sports auction draft and includes generating real-time
recommendations including an initial bid value of a player who
has already been nominated in the current fantasy sports auction
draft based on a bid placed by another fantasy sports team
participating in the draft and subsequent adjustments to the
initial bid value based on comparing the remaining number of
players in the tier corresponding to the nominated player to a
threshold that is indicative of a percentage of total players in the
tier.
Id. at 15–16.
Basically, Appellant asserts that the “inventive concept” of claims 26
and 27 is, as with claim 21, the abstract idea of performing data analysis
with a computer in a fantasy auction environment. Our discussion with
respect to claim 21 is equally appropriate here and will not be repeated at
length. Once again, Appellant confuses the concept of an “inventive
concept” with that of an allegedly ingenious abstract idea. However, “[i]t
has been clear since Alice that a claimed invention’s use of the ineligible
concept to which it is directed cannot supply the inventive concept that
renders the invention ‘significantly more’ than that ineligible concept.” BSG
Tech. LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir. 2018). We
may assume that the techniques claimed are “[g]roundbreaking, innovative,
or even brilliant,” but that is not enough for eligibility. Ass'n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013); accord
buySAFE, Inc. v. Google, Inc., 765 F.3d 1350, 1352 (Fed. Cir. 2014). Nor is
it enough for subject-matter eligibility that claimed techniques be novel and
nonobvious in light of prior art, passing muster under 35 U.S.C. §§ 102
and 103. See Mayo, 566 U.S. at 89–90 (2012); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (explaining that a
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claim for a new abstract idea is still an abstract idea). Appellant’s claims are
ineligible because their innovation is an innovation in ineligible subject
matter. Their subject is nothing but data analysis based on selected
information and the presentation of the results thereof to a user.
We affirm the Examiner’s rejection of claims 26 and 27.
Claims 22–25 and 28–38
These claims are not separately argued. The Examiner’s rejection
thereof is hereby sustained. See 37 C.F.R. § 41.37(c)(1)(iv) (failure to
separately argue claims).
CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
21–38 § 101 X

DECISION
The decision of the Examiner to reject claims 21–38 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED