Jacob Pechenik et al.

Patent Trials and Appeals Board

Sep 3, 2019

12911490 - (D) (P.T.A.B. Sep. 3, 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.
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