Ex Parte Barron Guerra Vicente

Patent Trial and Appeal Board

Jun 19, 2018

13462091 (P.T.A.B. Jun. 19, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/462,091 05/02/2012 Luis Antonio Barron Guerra Vicente
21186 7590 06/21/2018
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
UNITED ST A TES OF AMERICA
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
3321.003US 1 4636
EXAMINER
NGUYEN, LIZ P
ART UNIT PAPER NUMBER
3696
NOTIFICATION DATE DELIVERY MODE
06/21/2018 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@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LUIS ANTONIO BARRON GUERRA VICENTE
Appeal2017-002339
Application 13/462,091
Technology Center 3600
Before ERIC B. CHEN, AMBER L. HAGY, and DAVID J. CUTITTA II,
Administrative Patent Judges.
HAGY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 24--46, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellant identifies the real party in interest as BM&F BOVESPA S.A. -
Bolsa de Valores, Mercadorias Futuros. (App. Br. 2.)
Appeal2017-002339
Application 13/462,091
STATEMENT OF THE CASE
Introduction
According to Appellant, "[t]he invention relates ... to processes and
system of risk assessment for closing out a portfolio and, more specifically,
... to processes and system that allow a safer transaction and, at the same
time, with lower risk and costs for at least one of the parties involved in the
transaction." (Spec. 1: 9-13.)
Exemplary Claim
Claims 24, 39, 41, and 44 are independent. Claim 24, reproduced
below, is exemplary of the claimed subject matter:
24. A computer-implemented method for assessing
closeout risk of a given portfolio of interest, the computer-
implemented method compnsmg electronic operations
performed with an electronic risk assessment system, the
electronic risk assessment system including a processor and a
memory, the electronic operations including:
obtaining data in the risk assessment system to represent
characteristics of the portfolio for use in a projection of a
closeout of the portfolio, with execution of operations in the risk
assessment system including:
identifying a set of time periods for the closeout of the
portfolio;
identifying a plurality of investments associated with the
portfolio, wherein the plurality of instruments
associated with the portfolio includes assets and
contracts from multiple asset types; and
identifying a plurality of collaterals associated with the
portfolio, wherein the plurality of collaterals
associated with the portfolio includes one or more
of cash, bonds, or securities, from multiple asset
types;
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obtaining data in the risk assessment system to represent a
plurality of strategies for the projection of the closeout of the
portfolio, with execution of operations in the risk assessment
system including:
identifying a plurality of strategies for the closeout of the
portfolio, wherein the respective strategies for the
closeout of the portfolio are defined for a
prospective settlement of assets and contracts of the
portfolio over a period of time that ii qui dates
respective positions in the assets and contracts, and
wherein the respective strategies consider
respective positions of the plurality of collaterals
associated with the portfolio;
performing electronic calculations in the risk assessment
system for overall potential losses from the plurality of strategies,
with execution of operations of an loss calculation algorithm in
the risk assessment system, the operations performed on data
including the data to represent characteristics of the portfolio and
the data to represent the plurality of strategies, the operations of
the loss calculation algorithm including:
evaluating transient losses associated with each of the
plurality of strategies and each time period of the set
of time periods;
evaluating permanent losses associated with each of the
plurality of strategies and each time period of the set
of time periods; and
calculating aggregated losses based on the transient losses
and the permanent losses, the aggregated losses
associated with each of the plurality of strategies;
performing electronic calculations in the risk assessment
system for an estimated risk of the respective strategies for the
closeout of the portfolio, with execution of operations of an risk
estimation algorithm in the risk assessment system, the
operations performed on data including the data to represent
characteristics of the portfolio and the data to represent the
plurality of strategies, the operations of the risk estimation
algorithm including:
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calculating a projected closeout risk for the portfolio in
each of the plurality of strategies, wherein
calculating the projected closeout risk for the
portfolio includes generating an estimate of possible
losses relating to each time period of the set of time
periods.
Rejection
Claims 24--46 stand rejected under 35 U.S.C. § 101 as being directed
to patent-ineligible subject matter. (Final Act. 4.)
ANALYSIS
The Supreme Court has set forth an analytical "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'!, 134 S. Ct. 2347, 2355
(2014) (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 71-73 (2012)). In the first step of the analysis, we determine
whether the claims at issue are "directed to" a judicial exception, such as an
abstract idea. Alice, 134 S. Ct. at 2355. If not, the inquiry ends. Thales
Visionix Inc. v. U.S., 850 F.3d 1343, 1346 (Fed. Cir. 2017); Enfish, LLC v.
Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016). If the claims are
determined to be directed to an abstract idea, then we consider under step
two whether the claims contain an "inventive concept" sufficient to
"transform the nature of the claim into a patent-eligible application." Alice,
134 S. Ct. at 2355 (quotations and citation omitted).
Noting that the two stages involve "overlapping scrutiny of the
content of the claims," the Federal Circuit has described "the first-stage
inquiry" as "looking at the 'focus' of the claims, their 'character as a
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whole,"' and "the second-stage inquiry (where reached)" as "looking more
precisely at what the claim elements add-specifically, whether, in the
Supreme Court's terms, they identify an 'inventive concept' in the
application of the ineligible matter to which (by assumption at stage two) the
claim is directed." Electric Power Group, LLC v. Alstom S.A., 830 F.3d
1350, 1353 (Fed. Cir. 2016). In considering whether a claim is directed to
an abstract idea, we acknowledge, as did the Court in Mayo, that "all
inventions at some level embody, use, reflect, rest upon, or apply laws of
nature, natural phenomena, or abstract ideas." Mayo, 566 U.S. at 71. We,
therefore, look to whether the claims focus on a specific means or method
that improves the relevant technology or are instead directed to a result or
effect that in itself is the abstract idea and merely invokes generic processes
and machinery. See Enfzsh, 822 F.3d at 1336.
Step One: Whether the Claims Are Directed to a Patent-Ineligible
Concept (Abstract Idea)
The Examiner concludes claims 24--46 are directed to the "abstract
idea" of "comparing new and stored information and using rules to identify
options and organizing information through mathematical correlations."
(Final Act. 4.) The Examiner provides reasoning to support this conclusion,
stating that"[ w ]hile the claims do not explicitly recite 'comparing new and
stored information and using rules to identify options', the concept of
'comparing new and stored information and using rules to identify options'
is described by the obtaining, identifying, and evaluating steps in claim
[24]." (Id.)
As the Examiner concludes, and we agree, the claims here are
ineligible because they recite nothing but a series of steps of data selection
and gathering ("obtaining data"), and manipulation of that data based on
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application of mathematical rules and algorithms ("performing electronic
calculations"). (Final Act. 4; Ans. 9.) That is all abstract. See SAP
America, Inc. v. InvestPic, LLC, 890 F.3d 1016, 1021 (Fed. Cir. 2018);
Electric Power, 830 F.3d at 1354.
In arguing the Examiner has provided "no basis" for concluding the
claims are directed to an abstract idea, Appellant argues:
While various courts have found certain methods of organizing
human activity and fundamental economic practices as ineligible
for being an "abstract idea", Appellant respectfully disputes the
characterization that "comparing new and stored information and
using rules to identify options and organizing information
through mathematical correlations" is encompassed by the
present claims, or that any similar computer implemented
process involving information and rules is per se directed to an
abstract idea.
(App. Br. 16.)
We disagree. As our reviewing court has explained, "claims focused
on 'collecting information, analyzing it, and displaying certain results of the
collection and analysis' are directed to an abstract idea." SAP America, 890
F.3d at 1021 (quoting Electric Power, 830 F.3d at 1353). We agree with the
Examiner's conclusion that the claims here are directed to abstract ideas
under those principles. In particular, claim 24 claims a "method for
assessing closeout risk of a given portfolio of interest," and recites steps of
"obtaining data," including "identifying" particular kinds of data (such as
"set time periods," and "instruments" and "collaterals" that are "associated
with the portfolio"), and "performing electronic calculations" according to
particular "algorithm[ s ]." Although the claims recite considerable detail as
to the character of the information that is obtained, identified, and input into
the calculations, that does not change the character of the claims. As our
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reviewing court has explained, "' [i]nformation as such is an intangible,'
hence abstract, and 'collecting information, including when limited to
particular content (which does not change its character as information), [i]s
within the realm of abstract ideas."' SAP America, 890 F.3d at 1021
(quoting Electric Power, 830 F.3d at 1353). So, too, is "analyzing
information ... by mathematical algorithms, without more." Electric
Power, 830 F.3d. at 1354 (citing, e.g., Parker v. Flook, 437 U.S. 584 (1978),
and Gottschalkv. Benson, 409 U.S. 63 (1972)). Thus, the recitation in the
claims of specific mathematical algorithms to be applied to the data, as in
the dependent claims, also does not remove the claims from the realm of the
abstract. Indeed, Appellant concedes "the claims are directed to a
computerized technique for data processing." (App. Br. 23.)
Appellant also argues "the present rejection appears to be prejudiced
against business method subject matter, assuming a conclusion of
ineligibility for any business method in direct violation of Supreme Court
guidance." (App. Br. 22; see also id. at 22-24.) We disagree. The
Examiner's conclusion that the claims are directed to an abstract idea
follows Supreme Court and Federal Circuit authorities, as addressed above.
Moreover, no prejudice against "business method" inventions per se can be
inferred reasonably from the Examiner's rejection, given that Examiner's
conclusion that the claims are directed to an abstract idea focuses primarily
on the fact that the claims are directed merely to data gathering and
manipulation, which is an abstract idea, without particular regard for the type
of data being gathered and manipulated (specific to assessing closeout risk
of a portfolio). (See Final Act. 4; Ans. 9.)
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Appellant additionally argues the claims represent improvements in
computer functionality, and hence are not directed to abstract ideas, citing
the Federal Circuit's decisions in Enfzsh, 822 F.3d 1327, and Amdocs
(Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294 (Fed. Cir. 2016).
(Reply Br. 2-5.) We disagree. There is a fundamental difference between
computer functionality improvements, on the one hand, and uses of existing
computers as tools to perform a particular task, on the other. That is the
distinction the Federal Circuit applied in Enfish in rejecting a§ 101
challenge at the step one stage in the Alice analysis. Enfzsh, 822 F.3d at
1335-36. In particular, the claims at issue in Enfzsh focused on a specific
type of data structure, i.e., a self-referential table for a computer database,
designed to improve the way a computer carries out its basic functions of
storing and retrieving data, and not on asserted advances in uses to which
existing computer capabilities could be put. Id. at 1335-36. Similarly, in
Amdocs, the court concluded the claim was patent-eligible because it was
directed to a technological problem:
In other words, this claim entails an unconventional
technological solution ( enhancing data in a distributed fashion)
to a technological problem (massive record flows which
previously required massive databases). The solution requires
arguably generic components, including network devices and
"gatherers" which "gather" information. However, the claim's
enhancing limitation necessarily requires that these generic
components operate in an unconventional manner to achieve an
improvement in computer functionality.
Amdocs, 841 F.3d at 1288 (emphasis added).
We find no parallel here between Appellant's claims and the claims
in Enfish or Amdocs, nor any comparable aspect in Appellant's claims that
represents "an improvement to computer functionality." Indeed, despite
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multiple repetitions of the assertion, Appellant does not explain how the
claims before us represent an improvement to computer functionality, nor
does Appellant assert that the recited technical components ( a "processor"
and "memory") operate in an unconventional manner. Indeed, in
Appellant's terms, the claims are directed to "a computer-implemented
search algorithm for finding strategies and using the results of the search to
project outcomes of a portfolio." (App. Br. 24.) Appellant does not explain
how such an algorithm concerns an improvement to computer capabilities,
instead of relating to an improvement in a search algorithm relating to
assessing closeout risk of a portfolio (and allowing for a "safer transaction,"
Spec. 1: 11 }-a process in which a computer is used as a tool in its ordinary
capacity. As such, the claims fit into the familiar class of claims that do not
"focus ... on ... an improvement in computers as tools, but on certain
independently abstract ideas that use computers as tools." Electric Power,
830 F.3d at 1354.
In short, we have considered all of Appellant's arguments challenging
the characterization of the pending claims as being directed to abstract ideas
(App. Br. 15-19; Reply Br. 2-5), but we do not find them to be persuasive
of error. Rather, we agree with the Examiner, at step one of the Alice
analysis, that the claims are directed to one or more abstract ideas.
Accordingly, we tum to the second step of the Alice analysis, in which we
determine whether the additional elements of the claims transform them into
patent-eligible subject matter.
Step Two: Whether Additional Elements Transform the Idea into
Patent-Eligible Subject Matter
Having found that the claims are directed to an abstract idea, the
Examiner also finds that the additional elements or combinations of
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elements beyond the abstract idea do not amount to "significantly more"
than the abstract idea itself, because "the computer as recited is a generic
computer component" that performs "generic computer functions." (Final
Act. 4.) The Examiner further finds "[i]n the instant claims, repetitive
calculations or a plurality of calculations on data that is obtained prior to the
steps of the calculations, both comprise functions that are routine,
conventional and well understood." (Ans. 10.)
Appellant first argues that "the Examiner's own concession that the
claims recite specific computer operations is enough to show that the claim
is not directed to a judicial exception." (App. Br. 19.) We disagree. In
essence, Appellant's argument distills down to the notion that using a
computer to perform the recited data gathering and electronic calculations
makes the claims patentable. As the Supreme Court has explained, however,
"the mere recitation of a generic computer cannot transform a patent-
ineligible abstract idea into a patent-eligible invention." Alice Corp., 134 S.
Ct. at 2358. Thus, automating the recited data gathering and calculations
using a computer ( even based on the selection of particular data and analysis
of that data according to particular rules) does not transform Appellant's
claims into patent-eligible subject matter. (See also Ans. 10-12.)
Unlike the situation addressed in DDR Holdings, LLC v. Hotels.com,
L.P., 773 F.3d 1245 (Fed. Cir. 2014), for example, Appellant does not claim
to change how the underlying technology operates. The Specification
describes only generic technology for executing software that implements
the claimed invention. (Spec. 22: 13-25 (noting that "the functionalities may
be implemented in logic or computer program code stored in a memory and
executable by one or more processors which may be directly or indirectly
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connected through a network for example").) Moreover, the Examiner finds
the tasks recited in the claims-such as "obtaining data" and "performing
electronic calculations" on that data-are common computer functions. (See
Ans. 12.) Appellant does not challenge this finding. Thus, we agree with
the Examiner's finding that the solution here is rooted in routine use of
conventional computer technology to carry out the claimed abstract idea.
(See id.)
To the extent Appellant maintains that the claimed subject matter is
not directed to an "abstract idea" because it is novel (App. Br. 19-20; Reply
Br. 7), Appellant misapprehends the law. As the Federal Circuit has
explained, a "'claim for a new abstract idea is still an abstract idea."' SAP
America, 890 F.3d at 1017 (quoting Synopsis, Inc. v. Mentor Graphics
Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016)). Although the novelty of the
claims over the prior art is not before us, even assuming the technique
claimed was "'innovative, or even brilliant,"' that would not be enough for
the claimed abstract idea to be patent eligible. See id.
Appellant also argues that the Examiner's rejection is contrary to
decisions by the Federal Circuit in McRO, Inc. v. Bandai Namco Games
America Inc., 837 F.3d 1299 (Fed. Cir. 2016), and BASCOM Global Internet
Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016). (Reply
Br. 6-7.) In particular, Appellant asserts these decisions stand for the
proposition that the use of a "computer-driven performance of a process ...
cannot automatically be excluded from subject matter eligibility," and
neither can recitation of the use "'generic' and known computer
components" necessarily fail to amount to "significantly more" than an
abstract idea. (Id.)
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Appellant's argument is not persuasive of Examiner error because it
mischaracterizes the nature of the rejection. Appellant's claims do not stand
rejected under§ 101 merely because they are computer-implemented
processes or because they use generic computer components. Rather, they
stand rejected because they are directed to abstract ideas, however allegedly
novel or detailed, and the fact that the ideas are implemented in software
using generic computer components merely as tools does not salvage the
eligibility of those claims. As the Federal Circuit recently explained in SAP
America: "In accordance with the Supreme Court's conclusion in Alice, ...
this court has ruled many times that 'such invocations of computers and
networks that are not even arguably inventive are insufficient to pass the test
of an inventive concept in the application of an abstract idea."' SAP
America, 890 F.3d at 1023 (quoting Electric Power, 830 F.3d at 1355; citing
Credit Acceptance Corp. v. Westlake Servs., 859 F.3d 1044, 1055-56 (Fed.
Cir. 2017); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F .3d
1364, 1374--75 (Fed. Cir. 2017); Secured Mail Solutions LLC v. Universal
Wilde, Inc., 873 F.3d 905, 909 (Fed. Cir. 2017)). The court in SAP America
further observed:
Under those decisions, an invocation of such computers and
networks is not enough to establish the required "inventive
concept" in application. Indeed, we think it fair to say that an
invocation of already-available computers that are not
themselves plausibly asserted to be an advance, for use in
carrying out improved mathematical calculations, amounts to a
recitation of what is "well-understood, routine, [and]
conventional."
SAP America, 890 F.3d at 1024 (quoting Mayo, 566 U.S. at 73).
In that regard, the claims here are critically different from those the
Federal Circuit determined to be patent eligible in McRO. There, claims
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were directed to the creation of something physical-namely, the display of
"lip synchronization and facial expressions" of animated characters on
screens for viewing by human eyes. 837 F.3d at 1313. The claimed
improvement was to how the physical display operated (to produce better
quality images), unlike ( what is present here) a claimed improvement in a
technique for assessing characteristics and risks of a portfolio of interests.
As the Federal Circuit recently noted in SAP America in upholding the
rejection of claims directed to "calculating, analyzing and displaying
investment data" and "providing statistical analysis of investment data over
an information network" using generic computer technology:
The claims in McRO thus were not abstract in the sense that is
dispositive here. And those claims also avoided being "abstract"
in another sense reflected repeatedly in our cases (based on a
contrast not with "physical" but with "concrete"): they had the
specificity required to transform a claim from one claiming only
a result to one claiming a way of achieving it.
SAP America, 890 F.3d at 1021 (citingMcRO, 837 F.3d at 1314) (collecting
cases).
Similarly, in BASCOM, the claims were patent-eligible "because they
were directed to improvements in the way computers and networks carry out
their basic functions." SAP America, 890 F.3d at 1022 (citing BASCOM,
827 F.3d at 1348--49). In contrast, Appellant's claims are properly
characterized, as noted above, as ones in which generic computer technology
is used merely as a tool to implement the claimed abstract ideas.
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting independent claim 24 under 35 U.S.C. § 101 as directed to patent-
ineligible subject matter, or in rejecting on the same basis independent
claims 39, 41, and 44, which Appellant does not argue separately.
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Although Appellant argues "the Rejection is incomplete and in error
due to its failure to articulate the subject matter of each and every dependent
claim" (App. Br. 21 ), Appellant presents no substantive argument as to
dependent claims 26, 30-41, 43, 44, or 46. See In re Lovin, 652 F.3d 1349,
1356 (Fed. Cir. 2011) ("We conclude that the Board has reasonably
interpreted Rule 41.37 to require applicants to articulate more substantive
arguments if they wish for individual claims to be treated separately.").
Accordingly, we sustain the Examiner's rejection of these claims on the
same basis as their respective independent claims. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Appellant presents additional argument as to dependent claims 25, 27,
28, 29, 42, and 45, asserting the Examiner's rejection of those claims is in
error because the rejection fails to consider the "data structures" recited in
those claims. (App. Br. 21.) We disagree. Dependent claims 25, 28, 29, 42,
and 45 each recite a "matrix," and further recite the content of data to be
stored in the matrix. (App. Br. 29, 30, 36-38 (Claims App'x).) In arguing
Examiner error as to the rejection of these claims, Appellant relies only on
the contention that "courts have repeatedly found data structures patent-
eligible when resident in computer hardware ( e.g., embodied in media or a
computer system)." (App. Br. 21.) To the extent Appellant contends that all
"data structures" are patent eligible, Appellant misapprehends the law.
Creation of a data structure ( such as a matrix of data) by using a computer
merely as a tool to gather and store data does not, alone, render a claim
patent eligible. See Content Extraction and Transmission LLC v. Wells
Fargo Bank, Nat'! Ass 'n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (holding that
the claims were "drawn to the abstract idea of 1) collecting data,
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2) recognizing certain data within the collected data set, and 3) storing that
recognized data in a memory"). The Federal Circuit's analysis in SAP
America is instructive:
Some of the claims require various databases and processors,
which are in the physical realm of things. But it is clear, from
the claims themselves and the specification, that these limitations
require no improved computer resources [patent owner] claims
to have invented, just already available computers, with their
already available basic functions, to use as tools in executing the
claimed process.
SAP America, 890 F.3d at 1023.
Thus, use of database structures and tangible computer hardware does
not necessarily render a claim patent-eligible. As the Federal Circuit
explained in Enfzsh, the relevant inquiry is "whether the claims are directed
to an improvement in computer functionality" versus a process "for which
computers are invoked merely as a tool." Enfzsh, 822 F.3d at 1335-36
( emphases added). In Enfzsh, the claims were held to be patent-eligible not
because they recited a data structure per se, but because they recited "a
specific improvement to the way computers operate, embodied in the self-
referential table." Id. at 1336. Here, in contrast, Appellant does not explain
how the matrix recited in dependent claims 25, 28, 29, 42, and 45 improves
the way a computer operates.
Dependent claim 27 does not recite a matrix, but recites "performing a
risk calculation methodology in accordance with a predefined risk model."
Appellant similarly presents no argument why this claimed step represents
an improvement in computer functionality, as opposed to carrying out the
abstract idea by invoking a computer as a tool.
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For the foregoing reasons, we are not persuaded of error in the
Examiner's 35 U.S.C. § 101 rejection of dependent claims 25, 27, 28, 29, 42,
and 45 and we, therefore, sustain that rejection.
DECISION
The Examiner's 35 U.S.C. § 101 rejection of claims 24--46 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)(l )(iv).
AFFIRMED
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