Jacob Pechenik et al.Download PDFPatent Trials and Appeals BoardSep 3, 201912911490 - (D) (P.T.A.B. Sep. 3, 2019) Copy Citation 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. 12/911,490 10/25/2010 Jacob Pechenik YJI-09-1288R 1281 35811 7590 09/03/2019 IP GROUP OF DLA PIPER LLP (US) ONE LIBERTY PLACE 1650 MARKET ST, SUITE 5000 PHILADELPHIA, PA 19103 EXAMINER MAGUIRE, LINDSAY M ART UNIT PAPER NUMBER 3693 NOTIFICATION DATE DELIVERY MODE 09/03/2019 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): pto.phil@us.dlapiper.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JACOB PECHENIK and BLAKE BARNES1 ____________________ Appeal 2018-004619 Application 12/911,490 Technology Center 3600 ____________________ Before JENNIFER S. BISK, LARRY J. HUME, and JULIET MITCHELL DIRBA, Administrative Patent Judges. BISK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the Final Rejection of claims 1–7, 9–22, 24–34, 36–48, and 50–60, which are all claims pending in the application. Appellants have canceled claims 8, 23, 35, and 49. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the real party in interest as YellowJacket, Inc. Appeal Br. 1. Appeal 2018-004619 Application 12/911,490 2 BACKGROUND2 Appellants’ disclosed embodiments and claimed invention relate to managing a display of straddle quotes according to user-defined display preferences. Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the subject matter on appeal: 1. A method for updating and displaying data, the method comprising: [(1)] electronically receiving, by at least one computing device, financial product quote data comprising at least two financial product quotes for a particular product from one or more data sources, each of the at least two financial product quotes comprising one or more aspects from the group consisting of a firm bid to buy, a firm offer to sell, an indication to buy, an indication to sell, a trade at a certain price, and an invitation to join a trade at a certain price, said at least one computing device comprising a memory storing instructions and a processor executing said instructions; [(2)] creating, via said at least one computing device, a synthetic financial product quote for the particular product by combining aspects of two or more of the at least two financial product quotes; [(3)] grouping, via said at least one computing device, the synthetic financial product quote with other financial product quotes for the particular product according to a first sort attribute; 2 Throughout this Decision we have considered the Specification filed October 25, 2010 (“Spec.”), the Final Rejection mailed May 26, 2017 (“Final Act.”), the Appeal Brief filed October 12, 2017 (“Appeal Br.”), the Examiner’s Answer mailed March 2, 2018 (“Ans.”), and the Reply Brief filed March 29, 2018 (“Reply Br.”) Appeal 2018-004619 Application 12/911,490 3 [(4)] for each grouping according to the first sort attribute, said at least one computing device ordering the financial product quotes according to a second sort attribute; [(5)] displaying, via said at least one computing device, a product unit display for the particular product, said product unit display including an ordered listing of a predefined number of financial product quotes according to the second sort attribute for each grouping according to the first sort attribute; [(6)] electronically receiving, by the at least one computing device, updated financial product quote data comprising at least one updated financial product quote for the particular product having different aspects than the at least two financial product quotes; [(7)] generating, by the at least one computing device, updated product unit display data by repeating the steps of creating and grouping based on the at least one updated financial product quote; and [(8)] automatically updating and displaying the updated product unit display data on the product unit display. Appeal Br. 31 (Claims App’x) (limitation numbering added). REJECTIONS Claims 1–7, 9–22, 24–34, 36–48, and 50–60 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Final Act. 13–16. Claims 1–7, 9–22, 24–34, 36–48, and 50–60 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of US 2008/0215477 A1, published Sept. 4, 2008 (“Annunziata”) and US Appeal 2018-004619 Application 12/911,490 4 2010/0076907 A1, published March 25, 2010 (“Rosenthal”). Final Act. 18–48.3 ANALYSIS We review the appealed rejections for error based upon the issues identified by Appellants, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential). To the extent Appellants have not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We have considered all of Appellants’ arguments and any evidence presented. We highlight and address specific findings and arguments for emphasis in our analysis below. Rejection of Claims 1–7, 9–22, 24–34, 36–48, and 50–60 under 35 U.S.C. § 101 Section 101 of the Patent Act provides that “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the Supreme Court has long recognized an implicit exception to this section: “‘Laws of nature, natural phenomena, and abstract ideas are not patentable.’” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 3 In the heading for this rejection, the Examiner refers to claims 1–7, 9–22, 24–48, and 50–56. Final Act. 18. However, because the Examiner subsequently analyzes claims 57–60 in the body of the rejection and does not analyze claim 35, we consider harmless error the omission of claims 57– 60 and the addition of claim 35 in the heading. Id. at 45–48. Appeal 2018-004619 Application 12/911,490 5 U.S. 576, 589 (2013)). To determine whether a claim falls within one of these excluded categories, the Court has set out a two-part framework. The framework requires us first to consider whether the claim is “directed to one of those patent-ineligible concepts.” Alice, 573 U.S. at 217. If so, we then examine “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. (quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)). That is, we examine the claims for an “inventive concept,” “an element or combination of 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 (alteration in original) (quoting Mayo, 566 U.S. at 72–73). The Patent Office recently issued guidance regarding this framework. See USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Under the Revised Guidance, to decide whether a claim is “directed to” an abstract idea, we evaluate whether the claim (1) recites subject matter falling within an abstract idea grouping listed in the Revised Guidance and (2) fails to integrate the recited abstract idea into a practical application. See Revised Guidance, 84 Fed. Reg. at 51. If the claim is “directed to” an abstract idea, as noted above, we then determine whether the claim recites an inventive concept. The Revised Guidance explains that when making this determination, we should consider whether the additional claim elements add “a specific limitation or combination of limitations that are not well- understood, routine, conventional activity in the field” or “simply append[] Appeal 2018-004619 Application 12/911,490 6 well-understood, routine, conventional activities previously known to the industry.” Revised Guidance, 84 Fed. Reg. at 56. For purposes of the § 101 rejection, Appellants argue claims 1–7, 9– 22, 24–34, 36–48, and 50–60 together as a group. See Appeal Br. 10–27; Reply Br. 1–5. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv), we limit our discussion to independent claim 1. Independent claims 16, 30, and 42 and dependent claims 2–7, 9–15, and 17– 22, 24–29, 31–34, 36–41, 43–48, and 50–60 stand or fall with independent claim 1. With these principles in mind, we turn to the Examiner’s § 101 rejection. The Judicial Exception—Abstract Idea The Examiner determined the claims are directed to “updating and displaying data; the data being related to financial products, synthetic financial product quotes and straddle quotes,” which include an abstract idea. Final Act. 14. For the reasons explained below, Appellants do not persuade us the Examiner erred in this conclusion. Limitations (1) through (8), under their broadest reasonable interpretation, contribute to receiving, aggregating, ordering, and displaying quotes for financial products, which is advertising, marketing or sales activity. See Spec. ¶ 8. In particular, claim 1 recites receiving at least two financial product quotes and at least one updated financial product quote for a particular product (limitations (1) and (6)), creating a synthetic financial product quote by combining aspects of two or more of the received data and the at least one updated financial product (limitations (2) and (7)), grouping the synthetic financial product quote with other financial product quotes for Appeal 2018-004619 Application 12/911,490 7 the particular product and the at least one updated financial product quote according to a first sort attribute (limitations (3) and (7)), ordering the financial product quotes in each grouping according to a second sort attribute (limitation (4)), and displaying a product unit display for the particular product including the ordered listing of a predefined number of financial product quotes and the updated product unit display data for each grouping (limitations (5) and (8)). This manipulation and presentation of financial product quote data is a commercial interaction similar to “providing a trader with additional financial information to facilitate market trades” found to be an abstract idea in Trading Technologies Int’l, Inc. v. IBG LLC., 921 F.3d 1378, 1384 (Fed. Cir. 2019). Accordingly, we conclude claim 1 recites a method of organizing human activity (commercial interaction), which is listed in the abstract idea groupings in the Revised Guidance. See Revised Guidance, 84 Fed. Reg. at 52. Claim 1 thus recites an abstract idea. Integration of the Judicial Exception into a Practical Application If a claim recites a judicial exception, we determine whether the recited judicial exception is integrated into a practical application of that exception by: (a) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s); and (b) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application. If the recited judicial exception is integrated into a practical application, the claim is not directed to the judicial exception. Appeal 2018-004619 Application 12/911,490 8 Here, claim 1 recites the additional elements of “electronically receiving” and “at least one computing device comprising a memory storing instructions and a processor executing said instructions.” Appeal Br. 31 (Claims App’x). Considering claim 1 as a whole, the additional elements do not apply or use the abstract idea in a meaningful way such that the claim as a whole is more than a drafting effort designed to monopolize the exception. The Supreme Court guides that the “prohibition against patenting abstract ideas ‘cannot be circumvented by attempting to limit the use of the formula to a particular technological environment’ or [by] adding ‘insignificant postsolution activity.’” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010) (quoting Diamond v. Diehr, 450 U.S. 175, 191–92 (1981)). The Specification describes each of these elements as generic components. For example, the Specification states that the components for performing the recited subject matter “may include one or more computing devices, hand-held communication devices, mobile computers, and/or any other electronic communication means.” Spec. ¶ 69. Moreover, claims to subject matter similar to that recited here have been found ineligible by the Federal Circuit. Trading Techs, 921 F.3d at 1084 (holding abstract claims that require “‘displaying’ a plurality of bid and offer indicators along a ‘scaled axis of prices,’ ‘receiving market information,’ displaying that information along the axis, and ‘displaying information pertaining to a user’s order”); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384 (Fed. Cir. 2019) (holding abstract claims “focused on providing information to traders in a way that helps them process information more quickly”); Clarilogic, Inc. v. FormFree Holdings Corp., 681 F. App’x 950, 954 (Fed. Cir. 2017) (unpublished) (holding Appeal 2018-004619 Application 12/911,490 9 abstract claims “comprising the steps of receiving a request, electronically collecting financial data, transforming the data into a desired format, validating the data by ‘applying an algorithm engine,’ analyzing certain exceptions, and generating a report”). Appellants’ arguments have not persuaded us claim 1 is “directed to” a patent-eligible concept. For example, Appellants argue the Examiner failed to establish a prima facie case of patent ineligibility. Appeal Br. 22–27; Reply Br. 2. We disagree. The Federal Circuit has repeatedly noted that “the prima facie case is merely a procedural device that enables an appropriate shift of the burden of production.” Hyatt v. Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)). The Examiner satisfies the burden of establishing a prima facie case under 35 U.S.C. § 132 by setting forth a rejection in a sufficiently articulate and informative manner. See In re Jung, 637 F.3d 1356, 1363 (Fed. Cir. 2011). If the Examiner “adequately explain[s] the shortcomings . . . the burden shifts to the applicant to rebut the prima facie case with evidence and/or argument.” Hyatt, 492 F.3d at 1370. The Final Office Action adequately explains the § 101 rejection. See Final Act. 13–16. The Examiner’s statements satisfy § 132(a) because they apply the Alice analytical framework and apprise Appellants of the reasons for the § 101 rejection under that framework. Appellants have not responded by alleging a failure to understand the rejection, but that the Examiner “overgeneralized . . . the claims.” Appeal Br. 23. Our reviewing court recognizes that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d Appeal 2018-004619 Application 12/911,490 10 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does not, “impact the patentability analysis.” Id. at 1241. Appellants also argue that the claims “include a specific and novel set of features and rules that are used to enrich collected data.” Appeal Br. 12 (citing McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299 (Fed. Cir. 2016). According to Appellants, the claims “solve technological problems associated with aggregating high volume and rapidly changing real-time data from various sources, displaying the aggregated data on a console, and updating the aggregated data displayed on a console automatically and in a timely manner.” Id. Appellants add that “[t]he computing device itself is specialized by the inclusion of the novel data enrichment rules (e.g., software) for controlling unique way in which (i.e., how) the data is aggregated, created, and displayed to the product unit display.” Id. We do not agree with Appellants’ analogy to McRO. The claims in McRO “focused on a specific asserted improvement in computer animation, i.e., the automatic use of rules of a particular type.” McRO, 837 F.3d at 1314. The rules were “limited” and had “specific characteristics,” and the claims incorporated “the specific features of the rules as claim limitations.” McRO, 837 F.3d at 1313, 1316. In contrast, claim 1 recites a series of broadly worded results without meaningfully describing how the results are achieved. For example, claim 1 recites “creating, via said at least one computing device, a synthetic financial product quote for the particular product by combining aspects of two or more of the at least two financial product quotes,” “grouping, via said at least one computing device, the synthetic financial product quote with other financial product quotes for the Appeal 2018-004619 Application 12/911,490 11 particular product according to a first sort attribute,” and “ordering the financial product quotes according to a second sort attribute.” Appeal Br. 31 (Claims App’x). These limitations recite that a synthetic quote is created and that data is grouped and ordered but say little about how these functions are performed. Cf. SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018) (explaining that the claims in McRO “avoided being ‘abstract’ in another sense reflected repeatedly in our cases” because “they had the specificity required to transform a claim from one claiming only a result to one claiming a way of achieving it”). And claim 1 generally concerns “managing a display of straddle quotes according to user-defined display preferences,” Spec. ¶ 2, not improving a technological process such as computer animation like the claims in McRO. Claim 1 is thus distinguishable from the patent-eligible claims in McRO. Moreover, the technological improvements referred to by Appellants (“reduc[ing] latencies so that more financial products can be transacted at their desired prices (i.e., before market prices shift) and in a shorter amount of time” (Appeal Br. 12), “quickly and constantly update the console” (id. at 13), and addressing the receipt of “incomplete financial product quote data” (id. at 14)) are attributed to automation of the process of aggregating and ordering quotes. See also id. at 21–22 (listing similar problems and improvements). These improvements are typical improvements expected by automating a manual process using a computer. There is no indication that any resulting increase in efficiency or accuracy comes from the recited process itself. See FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016) (citing Bancorp Servs., L.L.C. v. Sun Life Assurance Co. (U.S.), 687 F.3d 1266, 1278 (Fed. Cir. 2012) (“[T]he fact that the Appeal 2018-004619 Application 12/911,490 12 required calculations could be performed more efficiently via a computer does not materially alter the patent eligibility of the claimed subject matter.”)); see also Intellectual Ventures I LLC v. Erie Indemnity Co., 711 F. App’x 1012, 1017 (Fed. Cir. 2017) (unpublished) (“Though the claims purport to accelerate the process of finding errant files and to reduce error, we have held that speed and accuracy increases stemming from the ordinary capabilities of a general-purpose computer ‘do[] not materially alter the patent eligibility of the claimed subject matter.’” (alteration in original) (citation omitted)). Similarly, Appellants argue the claims are eligible because they are similar to the claims at issue in Amdocs, BASCOM, and Enfish. Appeal Br. 17–19 (citing Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288 (Fed. Cir. 2016); BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016); Enfish, LLC v. Microsoft Corp., 822 F.3d 1327 (Fed. Cir. 2016)). Appellants do not provide persuasive reasoning to support these arguments. These cases find the claims at issue eligible because they improve the way computers operate. Amdocs, 841 F.3d at 1300 (stating “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)”); BASCOM, 827 F.3d at 1350 (“Filtering content on the Internet was already a known concept, and the patent describes how its particular arrangement of elements is a technical improvement over prior art ways of filtering such content.”); Enfish, 822 F.3d at 1336 (stating the claims “are directed to a specific improvement to the way computers operate, embodied in the self-referential table”). Appellants, however, have Appeal 2018-004619 Application 12/911,490 13 not shown that claim 1 recites a similar “non-conventional and non-generic arrangement of known, conventional pieces” or that the claimed invention improves the performance of a computer system. Appeal Br. 27. Appellants also contend the claims “are not broad enough to cover all approaches to updating and displaying data in a financial computer network architecture.” Appeal Br. 16. This argument does not alter our § 101 analysis. Rather than preemption, the Federal Circuit instructs that the Alice two-step analysis is the test for whether claims are statutory. “While preemption may signal patent ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “Where 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.” Id. Accordingly, even in combination with all the other recited elements, the addition of “electronically receiving” and “at least one computing device comprising a memory storing instructions and processor executing said instructions,” does not integrate the abstract idea into a practical application because it does not impose any meaningful limits on practicing the abstract idea. For these reasons, we determine that claim 1 does not integrate the recited abstract idea into a practical application. Inventive Concept Because we agree with the Examiner that claim 1 is “directed to” an abstract idea, we consider whether an additional element (or combination of elements) adds a limitation that is not well-understood, routine, conventional (“WURC”) activity in the field or whether the additional elements simply Appeal 2018-004619 Application 12/911,490 14 append WURC activities previously known to the industry, specified at a high level of generality, to the judicial exception. Revised Guidance, 84 Fed. Reg. at 23. The Examiner’s finding that an additional element (or combination of elements) is WURC activity must be supported with a factual determination. Id. (citing MPEP § 2106.05(d), as modified by the Berkheimer Memorandum4). Whether the additional elements (“electronically receiving” “at least one computing device comprising a memory storing instructions and processor executing said instructions”) are WURC activity is a question of fact. See Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018) (“Whether something is well-understood, routine, and conventional to a skilled artisan . . . is a factual determination.”). On the record before us, Appellants have not shown that the claims on appeal add a specific limitation beyond the judicial exception that is not “well-understood, routine, and conventional” in the field (see MPEP § 2106.05(d)). Other than asserting that the entirety of the claimed subject matter is unconventional, Appellants do not point to any particular claimed element that does not qualify as WURC. Appeal Br. 20, 25; Reply Br. 3–5. In fact, as explained by the Examiner (Final Act. 16), Appellants’ Specification demonstrates the WURC nature of the additional elements because it indicates they may be implemented with generic devices (Spec. ¶ 69). 4 Robert W. Bahr, Changes in Examination Procedure Pertaining to Subject Matter Eligibility, Recent Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.) (2018) (hereinafter “Berkheimer Memorandum”). Appeal 2018-004619 Application 12/911,490 15 For these reasons, we conclude that claim 1, considered as a whole, does not include an inventive concept. Therefore, we sustain the Examiner’s § 101 rejection of independent claim 1. We also sustain the Examiner’s § 101 rejection of claims 1–7, 9–22, 24–34, 36–48, and 50–60, for which Appellants rely on the same arguments made with respect to claim 1. Appeal Br. 10–27; Reply Br. 2–5. Obviousness over Annunziata and Rosenthal For the obviousness rejections, Appellants argue claims 1–7, 9–15, 17–22, 24–29, 31–34, 36–48, and 49–60 together as a group and separately argue independent claims 16 and 30 as a group. See Appeal Br. 27–30; Reply Br. 5. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv), we limit our discussion to independent claims 1 and 16. Independent claim 42 and dependent claims 1–7, 9–15, 17–22, 24–29, 31– 34, 36–41, 43–48, and 50–60 stand or fall with claim 1, and independent claim 30 stands or falls with claim 16. Claim 1 The Examiner rejects claim 1 under 35 U.S.C. § 103 as obvious over a combination of Annunziata and Rosenthal. Final Act. 18–48. Specifically, the Examiner relies on Rosenthal as teaching “creating, via said at least one computing device, a synthetic financial product quote for the particular product by combining aspects of two or more of the at least two financial product quotes” (the “synthetic quote limitation”). Final Act. 20 (citing Rosenthal ¶¶ 77, 206–207, 228–230, 235–237). The Examiner points to Rosenthal’s description of a “ratio spread[]” as teaching the synthetic financial product quote, explaining “[a] spread strategy inherently requires Appeal 2018-004619 Application 12/911,490 16 selecting at least one aspect of the first financial product quote and at least one aspect of the second financial product quotes.” Id. at 6; Ans. 8. Appellants argue Rosenthal does not teach the synthetic quote limitation because it “does not describe creating a synthetic product quote having aspects of two or more financial product quotes that are unchanged.” Appeal Br. 28. According to Appellants, “any skilled artisan would understand that this aspect (i.e., remaining unchanged) is inherent when viewed in light of the rest of the claim and the specification.” Id. Appellants add that the plain meaning of the language of claim 1 “means that aspects are taken as they are and merged or united.” Id. In Appellants’ view, by broadly interpreting the synthetic quote to encompass aspects that are changed, the Examiner “is suggesting that the Appellants are required to explicitly recite a ‘negative’ limitation (i.e., recite everything that the claims do not do.” Id. We do not agree with Appellants’ narrow interpretation of the synthetic quote limitation. Nothing in the Specification requires that the aspects of the two or more financial product quotes that are combined to create the synthetic quote must be unchanged as asserted by Appellants. For example, the Specification states “[a] synthetic quote may be a quote in which aspects of two or more financial product quotes are combined or merged, thereby forming a synthetic financial products quote.” Spec. ¶ 44. Nothing in this statement requires that the combined or merged aspects are unchanged. This silence regarding change is also true of the language in claim 1—“creating . . . a synthetic financial product quote for the particular product by combining aspects of two or more of the at least two financial product quotes.” Appeal Br. 31 (Claims App’x) (emphasis added). We do Appeal 2018-004619 Application 12/911,490 17 not agree with Appellants that the Examiner improperly requires a negative limitation, but instead the Examiner properly interprets the claim using its plain language. Nothing in the plain meaning of the words “merge” or “combine” restricts the aggregated elements from being modified in any way. Appellants do not direct us to any other language in the Specification that makes such restriction explicit. Appeal Br. 27–29. Instead, Appellants’ assertions amount to attorney argument without supporting evidence. Id. It is well settled that mere attorney arguments and conclusory statements, which are unsupported by factual evidence, are entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence). We, therefore, agree with the Examiner that the broadest reasonable construction5 of the synthetic quote limitation does not limit a synthetic quote to include only unchanged aspects from contributing financial product quotes. See Final Act. 6. Because we do not agree with Appellants’ proposed construction of the synthetic quote limitation, Appellants’ arguments do not persuade us that the Examiner erred in the rejection of claim 1 as obvious over Annunziata 5 During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2018-004619 Application 12/911,490 18 and Rosenthal. Remaining claims 2–7, 9–15, 17–22, 24–29, 31–34, 36–48, and 50–60, not argued separately (see Appeal Br. 27–30), fall with claim 1. Claim 16 Claims 16 and 30 recite receiving straddle quote data comprising at least two straddle quotes for a particular product . . . each of the at least two straddle quotes comprising a plurality of aspects including a term, a strike and one or more of a firm bid to buy, a firm offer to sell, an indication to buy, an indication to sell, a trade at a certain price, and an invitation to join a trade at a certain price. Appeal Br. 34, 36 (Claims App’x). The Examiner relies on Annunziata as disclosing this limitation. Final Act. 24 (Annunziata Figs. 1–160, ¶¶ 52, 62– 63, 94, 168). Appellants argue that the asserted references do not “disclose or suggest” straddle quotes. Appeal Br. 29–30; Reply Br. 5. Appellants state that “careful review of Annunziata Para. [0168], as well as the remaining portions thereof, does not reveal a discussion of ‘straddle quote.’” Appeal Br. 29. However, the Specification discusses straddles in the Background section, showing that this concept is known in the prior art. Spec. ¶ 4 (“Straddles are typically quoted and traded with strikes at or near the price of the underlying financial product . . . .”) (emphasis added). Moreover, Annunziata explicitly refers to “straddle” type transactions. Annunziata ¶ 168. Appellants do not address this disclosure or explain why it is not sufficient, in combination with the other relied upon portions of Annunziata and knowledge of the prior art, to at least suggest to a person of ordinary skill in the art that the received data is straddle quote data. Appeal 2018-004619 Application 12/911,490 19 Appellants’ arguments, therefore, do not persuade us that the Examiner erred in the rejection of claims 16 or 30 as obvious over Annunziata and Rosenthal. DECISION We affirm the Examiner’s rejection of claims 1–7, 9–22, 24–34, 36– 48, and 50–60 under 35 U.S.C. § 101. We affirm the Examiner’s rejection of claims 1–7, 9–22, 24–34, 36– 48, and 50–60 under 35 U.S.C. § 103(a). 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). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation