Nasdaq Technology AB

Patent Trials and Appeals Board

Nov 3, 2021

2021001511 (P.T.A.B. Nov. 3, 2021)

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.
16/030,115 07/09/2018 Jan TILFORS AC-4010-456 3474
23117 7590 11/03/2021
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
ALLADIN, AMBREEN A
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
11/03/2021 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAN TILFORS
____________

Appeal 2021-001511
Application 16/030,115
Technology Center 3600
____________

Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and
TARA L. HUTCHINGS, Administrative Patent Judges.

FETTING, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE1
Jan Tilfors (Appellant2) seeks review under 35 U.S.C. § 134 of a final
rejection of claims 1–11 and 13–20, the only claims pending in the
application on appeal. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
The Appellant invented a way of determining how a quantity of an
order in a market is allocated to other orders in the market. Spec. 1:8–10.
An understanding of the invention can be derived from a reading of
exemplary claim 1, which is reproduced below (bracketed matter and some
paragraphing added).
1. A method performed on a computer server system, the method
comprising:
[1] receiving,
at the computer server system,
a signal comprising an incoming data message that
includes a data transaction request with (a) a specified data
message type identifier, (b) at least one predefined
instruction from among a plurality of possible predefined
instructions, and (c) a quantity value;
[2] in response to reception of the incoming data message and for
each one of a plurality of pending data messages that are stored
to a memory device of the computer server system,

1 Our decision will make reference to the Appellant’s Appeal Brief (“Appeal
Br.,” filed October 8, 2020) and Reply Brief (“Reply Br.,” filed December
29, 2020), and the Examiner’s Answer (“Ans.,” mailed October 29, 2020),
and Final Action (“Final Act.,” mailed February 6, 2020).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Nasdaq
Technology AB (Appeal Br. 3).

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selecting those ones of the plurality of pending data
messages that have a data message type identifier that is
the same as the specified data message type identifier
contained in the data transaction message of the incoming
data message,
each one of the plurality of pending data messages having
(a) a numerical value for a numerical parameter, (b) a data
message type identifier for the respective data message,
and (c) a participant identity value that is for a pa1iicipant
identity parameter of the respective pending data message;
[3] generating a list of participant identity values from those
selected ones of the plurality of pending data messages,
wherein
each member of the generated list is a different
participant identity value
and
each participant identity value from those selected
ones of the plurality of pending data messages is
included in the generated list;
[4] for each participant identity value in the generated list of
participant identity values:
[4.1] determining, from the pending data messages, a set
of pending data messages that have the corresponding
participant identity value;
[4.2] calculating, from the set of pending data messages,
an aggregate time that the set of pending data messages
have spent on at least one dynamically determined
numerical value;
and
[4.3] automatically processing, via a processor of the
computer server system, the data transaction request
included in the incoming data message against the
plurality of pending data messages based on the calculated
aggregate time.
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Claims 1–11 and 13–20 stand rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.
Claim 20 stands rejected under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention.

ISSUES
The issues of eligible subject matter turn primarily on whether the
claims recite more than abstract conceptual advice of results desired.
The issues of indefiniteness matter turn primarily on whether there is
sufficient antecedent basis for claim limitations.

ANALYSIS
Claims 1–11 and 13–20 rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more
STEP 13
Claim 1, as a method claim, nominally recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. The issue before us
is whether it is directed to a judicial exception without significantly more.
STEP 2
The Supreme Court

3 For continuity of analysis, we adopt the steps nomenclature from 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7,
2019) (“Revised Guidance”).
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set forth a framework for distinguishing patents that claim laws
of nature, natural phenomena, and abstract ideas from those that
claim patent-eligible applications of those concepts. First, . . .
determine whether the claims at issue are directed to one of those
patent-ineligible concepts. . . . If so, . . . we then ask, “[w]hat
else is there in the claims before us? . . . To answer that question,
. . . consider the elements of each claim both individually and “as
an ordered combination” to determine whether the additional
elements “transform the nature of the claim” into a patent-
eligible application. . . . [The Court] described step two of this
analysis as a search for an “‘inventive concept’”—i.e., 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 Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations
omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc.,
566 U.S. 66, 72–73 (2012)). To perform this test, we must first determine
what the claims are directed to. This begins by determining whether the
claims recite one of the judicial exceptions (a law of nature, a natural
phenomenon, or an abstract idea). Then, if the claims recite a judicial
exception, determining whether the claims at issue are directed to the recited
judicial exception, or whether the recited judicial exception is integrated into
a practical application of that exception, i.e., that the claims “apply, rely on,
or use the judicial exception in a manner that imposes a meaningful limit on
the judicial exception, such that the claim is more than a drafting effort
designed to monopolize the judicial exception.” Revised Guidance, 84 Fed.
Reg. at 54. If the claims are directed to a judicial exception, then finally
determining whether the claims provide an inventive concept because the
additional elements recited in the claims provide significantly more than the
recited judicial exception.
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STEP 2A Prong 1
At a high level, and for our preliminary analysis, we note that method
claim 1 recites receiving and selecting message data, generating identity
data, determining matching data, calculating time data, and processing
transaction data. Selecting and determining are rudimentary data analysis.
Calculating is mathematical analysis. Thus, claim 1 recites receiving,
analyzing, generating, and processing data. None of the limitations recites
technological implementation details for any of these steps, but instead recite
only results desired by any and all possible means.
From this we see that claim 1 does not recite the judicial exceptions of
either natural phenomena or laws of nature.
Under Supreme Court precedent, claims directed purely to an abstract
idea are patent in-eligible. As set forth in the Revised Guidance, which
extracts and synthesizes key concepts identified by the courts, abstract ideas
include (1) mathematical concepts4, (2) certain methods of organizing
human activity5, and (3) mental processes6. Among those certain methods

4 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v.
Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio
Corp. of Am., 306 U.S. 86, 94 (1939); SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163 (Fed. Cir. 2018).
5 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219–20; Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys.
Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir.
2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed.
Cir. 2018).
6 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC
v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
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of organizing human activity listed in the Revised Guidance are commercial
or legal interactions. Like those concepts, claim 1 recites the concept of
managing transactions. Specifically, claim 1 recites operations that would
ordinarily take place in advising one to select the next transaction based on
participants, timing, and other parameters. The advice to select the next
transaction based on participants, timing, and other parameters involves
receiving a data transaction request, which is an economic act, and
processing the data transaction request, which is an act ordinarily performed
in the stream of commerce. For example, claim 1 recites “receiving. . . a
data transaction request,” which is an activity that would take place
whenever one is performing commercial transactions. Similarly, claim 1
recites “processing. . . the data transaction request,” which is also a
characteristic of commercial transactions.
The Examiner determines the claims to be directed to the recited
steps. Final Act. 4–5. The preamble to claim 1 does not recite what it is to
achieve, but the steps in claim 1 result in managing commercial market
transactions by selecting the next transaction based on participants, timing,
and other parameters absent any technological mechanism other than a
conventional computer for doing so.
As to the specific limitations, limitation 1 recites receiving data.
Limitations 2–4 recite generic and conventional analyzing, generating, and
processing of transaction data, which advise one to apply generic functions
to get to these results. The limitations thus recite advice for selecting the
next transaction based on participants, timing, and other parameters. To
advocate selecting the next transaction based on participants, timing, and
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other parameters is conceptual advice for results desired and not
technological operations.
The Specification at page 1, lines 8–10 describes the invention as
relating to determining how a quantity of an order in a market is allocated to
other orders in the market. Thus, all this intrinsic evidence shows that claim
1 recites managing transactions. This is consistent with the Examiner’s
determination.
This in turn is an example of commercial or legal interactions as a
certain method of organizing human activity because managing commercial
transactions organizes commercial interactions. The concept of managing
commercial market transactions by selecting the next transaction based on
participants, timing, and other parameters is one idea for coordinating
transactions. The steps recited in claim 1 are part of how this might
conceptually be premised.
Our reviewing court has found claims to be directed to abstract ideas
when they recited similar subject matter. See Bilski above.
Alternately, this is an example of concepts performed in the human
mind as mental processes because the steps of receiving, analyzing,
generating, and processing data mimic human thought processes of
observation, evaluation, judgment, and opinion, perhaps with paper and
pencil, where the data interpretation is perceptible only in the human mind.
See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir.
2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94
(Fed. Cir. 2016). Claim 1, unlike the claims found non-abstract in prior
cases, uses generic computer technology to perform data reception, analysis,
generation, and processing and does not recite an improvement to a
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particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco
Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims
not abstract because they “focused on a specific asserted improvement in
computer animation”). As such, claim 1 recites receiving, analyzing,
generating, and processing data, and not a technological implementation or
application of that idea.
From this we conclude that at least to this degree, claim 1 recites
managing commercial market transactions by selecting the next transaction
based on participants, timing, and other parameters, which is a commercial
and legal interaction, one of certain methods of organizing human activity
identified in the Revised Guidance, and, thus, an abstract idea.
STEP 2A Prong 2
The next issue is whether claim 1 not only recites, but is more
precisely directed to this concept itself or whether it is instead directed to
some technological implementation or application of, or improvement to,
this concept, i.e., integrated into a practical application.7
At the same time, we tread carefully in construing this
exclusionary principle lest it swallow all of patent law. At some
level, “all inventions . . . embody, use, reflect, rest upon, or apply
laws of nature, natural phenomena, or abstract ideas.” Thus, an
invention is not rendered ineligible for patent simply because it
involves an abstract concept. “[A]pplication[s]” of such
concepts “ ‘to a new and useful end,’ ” we have said, remain
eligible for patent protection. Accordingly, in applying the § 101
exception, we must distinguish between patents that claim the
“ ‘buildin[g] block[s]’ ” of human ingenuity and those that
integrate the building blocks into something more.

7 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S.
175 (1981).
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Alice, 573 U.S. at 217 (citations omitted).
Taking the claim elements separately, the operation performed by the
computer at each step of the process is expressed purely in terms of results,
devoid of implementation details. Step 1 is a pure data gathering step.
Limitations describing the nature of the data do not alter this. Step 3 recites
basic conventional data operations such as generating, updating, and storing
data. Steps 2 and 4 recite generic computer processing expressed in terms of
results desired by any and all possible means and so present no more than
conceptual advice. All purported inventive aspects reside in how the data is
interpreted and the results desired, and not in how the process physically
enforces such a data interpretation or in how the processing technologically
achieves those results.
Viewed as a whole, Appellant’s claim 1 simply recites the concept of
managing commercial market transactions by selecting the next transaction
based on participants, timing, and other parameters as performed by a
generic computer. This is no more than conceptual advice on the parameters
for this concept and the generic computer processes necessary to process
those parameters, and do not recite any particular implementation.
Claim 1 does not, for example, purport to improve the functioning of
the computer itself. Nor does it effect an improvement in any other
technology or technical field. The 21+ pages of Specification do not bulge
with disclosure, but only spell out different generic equipment8 and
parameters that might be applied using this concept and the particular steps

8 The Specification describes a computer server or a cluster of computer
servers. Spec. 1:16–17.
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such conventional processing would entail based on the concept of
managing commercial market transactions by selecting the next transaction
based on participants, timing, and other parameters under different
scenarios. They do not describe any particular improvement in the manner a
computer functions. Instead, claim 1 at issue amounts to nothing
significantly more than an instruction to apply managing commercial market
transactions by selecting the next transaction based on participants, timing,
and other parameters using some unspecified, generic computer. Under our
precedents, that is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 573 U.S. at 225–26.
None of the limitations reflects an improvement in the functioning of
a computer, or an improvement to other technology or technical field,
applies or uses a judicial exception to effect a particular treatment or
prophylaxis for a disease or medical condition, implements a judicial
exception with, or uses a judicial exception in conjunction with, a particular
machine or manufacture that is integral to the claim, effects a transformation
or reduction of a particular article to a different state or thing, or applies or
uses the judicial exception in some other meaningful way beyond generally
linking the use of the judicial exception to a particular technological
environment, such that the claim as a whole is more than a drafting effort
designed to monopolize the exception.
We conclude that claim 1 is directed to achieving the result of
managing commercial market transactions by advising one to select the next
transaction based on participants, timing, and other parameters, as
distinguished from a technological improvement for achieving or applying
that result. This amounts to commercial or legal interactions, which fall
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within certain methods of organizing human activity that constitute abstract
ideas. The claim does not integrate the judicial exception into a practical
application.
STEP 2B
The next issue is whether claim 1 provides an inventive concept
because the additional elements recited in the claim provide significantly
more than the recited judicial exception.
The introduction of a computer into the claims does not generally alter
the analysis at Mayo step two.
[T]he mere recitation of a generic computer cannot transform a
patent-ineligible abstract idea into a patent-eligible invention.
Stating an abstract idea “while adding the words ‘apply it’” is not
enough for patent eligibility. Nor is limiting the use of an
abstract idea “‘to a particular technological environment.’”
Stating an abstract idea while adding the words “apply it with a
computer” simply combines those two steps, with the same
deficient result. Thus, if a patent’s recitation of a computer
amounts to a mere instruction to “implemen[t]” an abstract idea
“on . . . a computer,” that addition cannot impart patent
eligibility. This conclusion accords with the preemption concern
that undergirds our § 101 jurisprudence. Given the ubiquity of
computers, wholly generic computer implementation is not
generally the sort of “additional featur[e]” that provides any
“practical assurance that the process is more than a drafting effort
designed to monopolize the [abstract idea] itself.”
Alice, 573 U.S. at 223–24 (citations omitted).
“[T]he relevant question is whether the claims here do more than
simply instruct the practitioner to implement the abstract idea . . . on a
generic computer.” Alice, 573 U.S. at 225. They do not.
Taking the claim elements separately, the function performed by the
computer at each step of the process is purely conventional. Using a
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computer for receiving, analyzing, generating, and processing data amounts
to electronic data query and retrieval—one of the most basic functions of a
computer. All of these computer functions are generic, routine, conventional
computer activities that are performed only for their conventional uses. See
Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303,
1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms
‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved
by any general purpose computer without special programming”). None of
these activities is used in some unconventional manner nor does any produce
some unexpected result. Appellant does not contend it invented any of these
activities. In short, each step does no more than require a generic computer
to perform generic computer functions. As to the data operated upon, “even
if a process of collecting and analyzing information is ‘limited to particular
content’ or a particular ‘source,’ that limitation does not make the collection
and analysis other than abstract.” SAP Am., 898 F.3d at 1168.
Considered as an ordered combination, the computer components of
Appellant’s claim 1 add nothing that is not already present when the steps
are considered separately. The sequence of data reception-analysis-
generation-processing is equally generic and conventional. See
Ultramercial, 772 F.3d at 715 (sequence of receiving, selecting, offering for
exchange, display, allowing access, and receiving payment recited an
abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis,
modification, generation, display, and transmission), Two-Way Media Ltd. v.
Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017)
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(sequence of processing, routing, controlling, and monitoring). The ordering
of the steps is therefore ordinary and conventional.
We conclude that claim 1 does not provide an inventive concept
because the additional elements recited in the claim do not provide
significantly more than the recited judicial exception.
REMAINING CLAIMS
Claim 1 is representative. The remaining method claims merely
describe process parameters. We conclude that the method claims at issue
are directed to a patent-ineligible concept itself, and not to the practical
application of that concept.
As to the structural claims, they
are no different from the method claims in substance. The
method claims recite the abstract idea implemented on a generic
computer; the system claims recite a handful of generic computer
components configured to implement the same idea. This Court
has long “warn[ed] . . . against” interpreting § 101 “in ways that
make patent eligibility ‘depend simply on the draftsman’s art.’”
Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any
particular machine.
LEGAL CONCLUSION
From these determinations we further determine that the claims do not
recite an improvement to the functioning of the computer itself or to any
other technology or technical field, a particular machine, a particular
transformation, or other meaningful limitations. From this we conclude the
claims are directed to the judicial exception of the abstract idea of certain
methods of organizing human activity as exemplified by the commercial and
legal interaction of managing commercial market transactions by advising
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one to select the next transaction based on participants, timing, and other
parameters, without significantly more.
APPELLANT’S ARGUMENTS
As to Appellant’s Appeal Brief arguments, we adopt the Examiner’s
determinations and analysis from Final Action pages 3–9 and Answer 11–16
and reach similar legal conclusions. We now turn to the Reply Brief.
We are not persuaded by Appellant’s argument that “the
improvements are new programming for how data transaction requests are
processed. It is the new programming that provides for an improvement in
exchange technology.” Reply Br. 2. Claim 1 does not recite any
improvement in how data transaction requests are processed or in exchange
technology. Instead, claim 1 recites a particular and conventional sequence
of conventional computer operations. No technological improvements in
operations are recited.
We are not persuaded by Appellant’s argument that Smith would lead
to a different outcome. Reply Br. 3–5 (citing Ex Parte Smith, No. Appeal
2018-000064, 2019 WL 764497 (PTAB Jan. 31, 2019)). Aside from the
Appellant admitted fact that this opinion is not controlling, Smith is factually
distinguishable. In particular, the majority found eligibility because Smith
included
(1) “delaying automatic execution of the new quote and the
order, and starting a timer,” (2) while “delaying automatic
execution” of the order, and “before expiration of the timer,”
receiving a second matching quote “wherein the second quote
matches the respective price of the public customer order,” and
(3) ”allocating the order between the first and second in-crowd
market participants at the electronic trade engine, wherein the
order is not executed until expiration of the timer.”
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Smith, 2019 WL 764497 at *5. The instant claims have no equivalent
structural relationships between hardware, execution, and timing. The
recited use of time data is instead mathematical computations from data.
We are not persuaded by Appellant’s argument that “[t]he
specification thus clearly indicates that a ‘technical solution’ is contemplated
and that this provides for an improvement over existing systems. The
specification then goes into detail (i.e., in the details description portion) as
to how the technical solution is implemented.” Reply Br. 4. The problem
for Appellant is that the claims do not recite technological implementation
details. Whether such are described in the Specification is not at issue.
Yu further points to portions of the specification to support the
contention that the asserted advance in the claims is the particular
configuration of lenses and image sensors. But “[e]ven a
specification full of technical details about a physical invention
may nonetheless conclude with claims that claim nothing more
than the broad law or abstract idea underlying the claims.” . . .
Such is the case here.
Yu v. Apple Inc., 1 F.4th 1040, 1044 (Fed. Cir. 2021) (citation omitted).
Appellant argues for the proposition that evidence of something being
conventional is necessary. Reply Br. 6–7. See Berkheimer v. HP Inc., 881
F.3d 1360 (Fed. Cir. 2018). Support for this finding is provided under Step
2B supra.

Claim 20 rejected under 35 U.S.C. § 112(b) as failing to particularly point
out and distinctly claim the invention
The Examiner determines “[c]laim 20 recites the limitation ‘wherein
the tangibly stored computer executable instructions. . . ’ in lines 2-3 of the
claim. There is insufficient antecedent basis for this limitation in the claim
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as Claim 19, from which this claim depends does not recite tangibly stored.”
Final Act. 10. We agree. Appellant attempts to equate the two descriptions.
Appeal Br. 20. They are not the same.

CONCLUSIONS OF LAW
The rejection of claims 1–11 and 13–20 under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more is proper.
The rejection of claim 20 under 35 U.S.C. § 112(b) as failing to
particularly point out and distinctly claim the invention is proper.
CONCLUSION
The rejections of claims 1–11 and 13–20 are affirmed.
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–11 13–20 101 Eligibility 1–11 13–20
20 112 Indefiniteness 20
Overall
Outcome
1–11 13–20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2019).

AFFIRMED