Anthony A. Renshaw

Patent Trials and Appeals Board

Jul 29, 2019

14495470 - (D) (P.T.A.B. Jul. 29, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/495,470 09/24/2014 Anthony A. Renshaw 166.0019 3038
27997 7590 07/29/2019
Hultquist IP
P.O. Box 14329
Research Triangle Park, NC 27709
EXAMINER
GREGG, MARY M
ART UNIT PAPER NUMBER
3697
NOTIFICATION DATE DELIVERY MODE
07/29/2019 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):
hip@hultquistip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ANTHONY A. RENSHAW1
__________________

Appeal 2018-006737
Application 14/495,470
Technology Center 3600
____________________

Before MICHAEL L. HOELTER, JAMES P. CALVE, and
MICHAEL L. WOODS, Administrative Patent Judges.

CALVE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the decision of the
Examiner finally rejecting claims 1–33 as directed to patent-ineligible
subject matter under a judicial exception to 35 U.S.C. § 101.2 Appeal Br. 2.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Axioma, Inc. is identified as the real party in interest. Appeal Br. 1.
2 The prior art rejections of claims 1–33 are withdrawn. See Ans. 3.
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CLAIMED SUBJECT MATTER
Claims 1, 9, 17, 23, 29, and 33 are independent. Claim 1 is below.
1. A computer-implemented method for computing
and reporting the performance attribution of a set of portfolio
holdings over time comprising:
electronically receiving and storing by the programmed
computer a set of dates defining an attribution time horizon to
be analyzed;
for each date, electronically receiving and storing by the
programmed computer a historical portfolio of holdings having
investment weights in a set of investible assets;
for each date, electronically receiving and storing by the
programmed computer an original factor risk model modeling
each investible asset in the historical portfolio of holdings as of
that date, the original factor risk model comprising at least a set
of factors, an original factor exposure matrix, and an original
vector of factor returns;
for each date, electronically receiving and storing by the
programmed computer a partitioning of the investible assets as
of that date into two or more partitioning groups such that each
investible asset belongs to one and only one of the partitioning
groups;
for each date, electronically receiving and storing by the
programmed computer a subset of factors to be partitioned
which includes at least one original factor;
for each date, electronically calculating and storing by
the programmed computer for the subset of factors to be
partitioned a set of partitioned factor contributions, each
partitioned factor contribution corresponding to a partitioning
group, each partitioned factor contribution being computed as a
sum of a product of an investment asset weight for an asset in
the partitioning group, an asset exposure from the original
factor exposure matrix, and a factor return from the original
factor return vector;
computing a performance attribution analysis for the
historical portfolios of holdings based on the partitioned factor
contributions for each date; and
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electronically outputting the performance attribution
results using an output device.

ANALYSIS
Subject Matter Eligibility of Claims 1–33
The Patent Laws provide “Whoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.” 35 U.S.C. § 101. However, “this
provision contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. v.
CLS Bank Int’l, 573 U.S. 208, 216 (2014) (internal quotation and citation
omitted).
Because “all inventions . . . embody, use, reflect, rest upon, or apply
laws of nature, natural phenomena, or abstract ideas,” a framework was set
forth to distinguish patents that claim laws of nature, natural phenomena,
and abstract ideas from those that claim patent-eligible applications of these
concepts. Id. at 217 (quoting Mayo Collaborative Serv. v. Prometheus
Labs., Inc., 566 U.S. 66, 71 (2012)). First, it is determined whether claims at
issue are directed to a patent-ineligible concept. Id. If so, the elements of
each claim are considered, both individually and as an ordered combination,
to determine if there are additional elements that transform the nature of the
claim into a patent eligible application, e.g., by providing an “inventive
concept” that ensures the patent amounts to significantly more than a patent
on the ineligible concept itself. Id. at 217–218 (internal quotation and
citation omitted).
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Recently, the USPTO issued guidance about this framework. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Revised Guidance”). To determine whether a claim is
“directed to” an abstract idea, we evaluate whether the claim recites one of
the judicial exceptions (law of nature, natural phenomenon, or abstract idea)
and, if so, whether the recited judicial exception is integrated into a practical
application, e.g., by applying, relying on, or using the judicial exception in a
manner that imposes a meaningful limit on the judicial exception. Id. at 53.
If a claim does not recite a judicial exception, or if it integrates a judicial
exception into a practical application, the claim is patent eligible. Id. at 54.
A claim that recites a judicial exception and does not integrate the
judicial exception into a practical application is “directed to” the judicial
exception, but the claim may recite additional elements that render the claim
patent eligible. Id. at 56. Additional elements are evaluated individually
and in combination to determine whether they provide an inventive concept
that amounts to significantly more than the exception itself so that the claim
is patent eligible. Id. A claim that adds a specific limitation or combination
of limitations that are not well-understood, routine, conventional activity in
the field is indicative that an inventive concept may be present. Id. A claim
that appends well-understood, routine, conventional activities previously
known to the industry and specified at a high level of generality to a judicial
exception is indicative that an inventive concept may not be present. Id.
With respect to the present appeal and rejection of claims 1–33 as
directed to a judicial exception under 35 U.S.C. § 101, Appellant argues the
claims as a group. Appeal Br. 23–28. We select claim 1 as representative.
See 37 C.F.R. § 41.37(c)(1)(iv).
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Step 2A, Prong One: Does Claim 1 Recite a Judicial Exception?
The Examiner determines claim 1 recites a software method rooted in
mitigation of risk, which the courts have held to be fundamental economic
practices and abstract ideas.3 Final Act. 31–33. The Examiner determines
that the method computes performance attribution analysis for determining
portfolio performance (analysis and modelling of economic transactions to
determine returns and performance of financial portfolios), and the process
is a fundamental economic practice like hedging financial risk in Bilski and
intermediated settlement in Alice. Id. at 32–33; see Alice, 573 U.S. at 219–
20; Bilski v. Kappos, 561 U.S. 609, 611 (2010).
The Revised Guidance extracts and synthesizes key concepts
identified by the courts as abstract ideas into the following three groups:
(a) Mathematical concepts— mathematical relationships,
mathematical formulas or equations, mathematical calculations;
(b) Certain methods of organizing human activity—
fundamental economic principles or practices (including
hedging, insurance, mitigating risk); commercial or legal
interactions (including agreements in the form of contracts;
legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or
relationships or interactions between people (including social
activities, teaching, and following rules or instructions); and
(c) Mental processes—concepts performed in the human
mind (including an observation, evaluation, judgment, opinion).
Revised Guidance, 84 Fed. Reg. at 52.

3 The Examiner’s determination that the method of claim 1 is directed to a
statutory eligibility category of a “process” satisfies Step 1 of the Revised
Guidance. Final Act. 31; see Revised Guidance, 84 Fed. Reg. at 53–54.
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We agree with the Examiner. Claim 1 recites: (1) certain methods of
organizing human activity––fundamental economic principles or practices of
mitigating risk and (2) mathematical concepts––mathematical relationships,
mathematical formulas or equations, mathematical calculations. Id. at 52;
Final Act. 11 (the claims are directed to the abstract concept of calculating
risk), 31–33 (the claims are rooted in the fundamental economic practice of
risk mitigation and computing performance attribution analysis to determine
portfolio performance); Ans. 3–4 (the claims recite computing and reporting
of performance attributions of portfolio holdings together with risk factor
contributions for the holdings by outputting results of a financial algorithm).
The following limitations of claim 1 recite these abstract ideas. In the
preamble, a “computer-implemented method for computing and reporting
the performance attribution of a set of portfolio holdings over time” recites
mathematical concepts––mathematical relationships, mathematical formulas
or equations, and mathematical calculations and certain methods of
organizing human activity––fundamental economic principles or practices
including mitigating risk. This method is one for calculating factor-based
performance attribution results for investment portfolios using factor risk
models. Spec. 1:5–6. The factor-based performance attribution explains
historical sources of return of a portfolio and identifies portfolio exposures
or bets that perform well or under-perform so portfolio performance can be
improved. Id. at 1:12–19.
The “historical portfolio of holdings having investment weights in a
set of investible assets” also recites mathematical concepts discussed above.
The Specification gives an example of weighting as “exponential weighting”
used to compute the covariance and variance. Id. at 15:15–22.
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Reciting “an original factor risk model modeling each investible asset
in the historical portfolio of holdings as of that date, the original factor risk
model comprising at least a set of factors, an original factor exposure matrix,
and an original vector of factor returns” also recites mathematical concepts
and methods of organizing human activity with fundamental principles or
practices of risk mitigation. The Specification describes the mathematical
concepts, formulas, equations, and calculations used to calculate the factor
risk model, exposure matrix, and vector or return factors. Id. at 13:17–28:4.
The clamed “partitioning of the investible assets . . . into two or more
partitioning groups such that each investible asset belongs to one and only
one of the partitioning groups” with “a subset of factors to be partitioned
which includes at least one original factor” recite mathematical concepts and
relationships. The Specification discloses the mathematical relationships,
formulas, equations, and calculations that are used in this partitioning or
“factor splitting” with at least one original factor. Id. at 28:5–30:31; see
Appeal Br. 5–7 and portions of the Specification cited therein.
The claimed “subset of factors to be partitioned a set of partitioned
factor contributions, each partitioned factor contribution corresponding to a
partitioning group, each partitioned factor contribution being computed as a
sum of a product of an investment asset weight for an asset in the
partitioning group, an asset exposure from the original factor exposure
matrix, and a factor return from the original factor return vector” also recites
mathematical concepts, formulas, equations, and calculations and methods
of organizing human activity including fundamental economic principles or
practices of risk mitigation. See Appeal Br. 7–8 and Specification citations
provided therein.
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The limitation “computing a performance attribution analysis for the
historical portfolios of holdings based on the partitioned factor contributions
for each date” also involves mathematical concepts, equations, calculations,
and formulas. See Appeal Br. 7–9.
Step 2A, Prong Two: Is There Integration into a Practical Application?
The Examiner determines that claim 1 is directed to abstract ideas of
risk calculation with mathematical formulas rather than improving computer
technology, and individual elements involve collecting and analyzing data at
a high level of generality with generic computers and generic functions. See
Final Act. 11, 33–42. The Examiner determines the ordered combination of
elements is directed to gathering and identifying data for use in an algorithm
to model and calculate risk rather than improving another technology or
technical field and uses computers as tools. Id. at 12–15, 42–43.
Appellant argues that the present invention “relates to improved
computer based systems, methods, and software for calculating performance
attribution results using more granular factors than are present in the original
factor risk mode.” Appeal Br. 24 (quoting Spec. 1:7–9). Appellant argues
that “the present invention provides new tools that allow ‘portfolio managers
to split the original risk model factors into more granular factors that cover
smaller subsets of the assets in the portfolio.’” Id. at 25 (quoting Spec. 5:4–
6). Appellant also argues that the claimed approach does not preempt other
and different “mitigation of risk” of “performance attribution” strategies. Id.
at 25–26. Appellant further argues that the present invention is necessarily
rooted in computer technology and addresses problems in existing factor
attribution strategies by providing advantageous techniques for adapting
accordingly. Id. at 26–28.
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We determine that claim 1 as a whole does not integrate the recited
judicial exceptions into a practical application. See Revised Guidance, 84
Fed. Reg. at 54. Additional elements recited in claim 1 beyond the abstract
ideas discussed above do not integrate the ideas into a practical application.
See id. at 54–55. The steps of “electronically receiving and storing by the
programmed computer a set of dates defining an attribution time horizon to
be analyzed,” or “an original factor risk model,” or “a partitioning of the
investible assets as of that date,” or “a subset of factors to be partitioned” all
add insignificant extra-solution activity to the judicial exception in the form
of “mere data gathering.” Id. at 55 & n.31; see Elec. Power Grp., LLC v.
Alstom S.A., 830 F.3d 1350, 1353–54 (Fed. Cir. 2016) (holding that steps of
data collection and analysis, without more, are not sufficient to make an
abstract idea patent eligible).
The final claimed step of “electronically outputting the performance
attribution results using an output device” recites insignificant extra-solution
activity that does not integrate the abstract ideas into a practical application.
Revised Guidance, 84 Fed. Reg. at 55 & n.31; see MPEP § 2106.05(g).
The asserted improvements to computer based systems, methods, and
software of calculating performance attribution results with more granular
factors than are present in the original factor risk mode and providing new
tools that allow portfolio managers to split the original risk model factors
into more granular factors that cover smaller subsets of the assets in the
portfolio (Appeal Br. 24–25) pertain to the abstract ideas identified above.
See RecogniCorp, LLC v. Nintendo Co., Ltd., 855 F.3d 1322, 1327 (Fed. Cir.
2017) (“Adding one abstract idea (math) to another abstract idea (encoding
and decoding) does not render the claim non-abstract.”).
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Even if claim 1 recites a new combination of abstract ideas, that
combination does not provide an additional limitation or inventive step to
ingrate the abstract ideas into a practical application. See Mayo, 566 U.S. at
88–90 (the patent eligibility of an abstract idea does not depend on its
alleged novelty or non-obviousness); SAP Am., Inc. v. InvestPic, LLC, 898
F.3d 1161, 1163, 1170 (Fed. Cir. 2018) (“No matter how much of an
advance in the finance field the claims recite, the advance lies entirely in the
realm of abstract ideas, with no plausibly alleged innovation in the non-
abstract application realm. An advance of that nature is ineligible for
patenting.”; holding that the invocation of computers and networks that are
not inventive does not establish an “inventive concept” and using such
computers to carry out improved mathematical calculations recites what is
well-understood, routine, and conventional); Synopsys, Inc. v. Mentor
Graphics Corp., 839 F.3d 1138, 1151 (Fed. Cir. 2016) (“But, a claim for a
new abstract idea is still an abstract idea.”); Versata Dev. Grp., Inc. v. SAP
Am., Inc., 793 F.3d 1306, 1335 (Fed. Cir. 2015) (claims that improved an
abstract idea, but not a computer’s performance are unpatentable).
Applying the abstract ideas in a generic computer environment uses
computers as tools to perform abstract ideas. Ans. 3–4; see Accenture Glob.
Servs., GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir.
2013) (“Accenture attempts to limit the abstract idea of claim 1 by applying
it in a computer environment and within the insurance industry. However,
those types of limitations do not ‘narrow, confine, or otherwise tie down the
claim.’ . . . [S]imply implementing an abstract concept on a computer,
without meaningful limitations to that concept, does not transform a patent-
ineligible claim into a patent-eligible one.”); Alice, 573 U.S. at 223 (same).
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Claim 1 recites no elements that improve computers or technology,
that implement abstract ideas on a particular machine integral to the claim,
or that transform a particular article to a different state or thing. See Revised
Guidance, 84 Fed. Reg. at 55; see also MPEP §§ 2106.05(b), 2106.05(c);
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“The mere manipulation or reorganization of data . . . does not satisfy
the transformation prong.”). Claim 1 applies the abstract ideas on generic
computers that perform generic functions. MPEP § 2106(b); Ultramercial,
Inc. v. Hulu, LLC, 772 F.3d 709, 716–17 (Fed. Cir. 2014) (applying abstract
ideas with generic computer functions is not tied to a particular machine).
The system comprises a computer or mobile device such as a personal
computer, workstation, or server that connects to a server or other computer
via an Internet, local area network, or wireless connection. Spec. 12:4–17.
Standard input and output devices are used with a personal computer with
Windows 7 or a Linux-based server system. Id. at 12:18–13:13.
Contrary to Appellant’s argument (Appeal Br. 26), the invention is not
rooted in computer technology, and DDR Holdings and McRO illustrate this
distinction. DDR dealt with a computer- and Internet-specific problem of
websites losing visitors to third-party merchants when visitors clicked on a
third-party merchant’s advertisement on a host site. DDR Holdings, LLC v.
Hotels.com, L.P., 773 F.3d 1245, 1248 (Fed. Cir. 2014). The claimed
system generated a new, composite web page that retained the look and feel
of the host website while displaying product information of a third-party
merchant. Id. at 1248–49. Here, claim 1 recites steps of gathering portfolio
holdings with a mathematical original factor risk model for each investible
asset and then partitioning the assets into smaller groups for more analysis.
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Similarly in McRO, Inc. v. Bandai Namco Games America, Inc., 837
F.3d 1299 (Fed. Cir. 2016), the claims focused on a concrete improvement
in the field of computer animation. The claimed process used a combined
order of specific rules that render information into a specific format that was
used and applied to create a desired result––a sequence of synchronized,
animated characters. McRO, 837 F.3d at 1314–15. The claims recited a
process of automated lip-synchronization of 3-D characters resulting from a
specific order of rules as a relationship between sub-sequences of phonemes,
timing, and weight of visual expression at a particular timing by a morph
weight set. Id. at 1315. Here, claim 1 recites steps of data manipulation
without a concrete, physical transformation of portfolios or investible assets.
In Amdocs, the claims recited accounting information correlated to a
network accounting record used to enhance the first network accounting
record based on the invention’s distributed architecture that apply a number
of field enhancements in a distributed fashion that represented a critical
advance over the prior art by solving a technological problem of massive
record flows that previously required massive databases. Amdocs (Israel)
Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300–01 (Fed. Cir. 2016).
Here, claim 1 recites receiving and storing information for analysis using the
abstract concepts discussed above. None of these judicial exceptions or the
additional steps improve computers, networks, or any other technology. See
SAP Am., 898 F.3d at 1167, 1168 (holding that claims to mathematical
techniques to perform statistical analysis on investment data and displaying
the results were abstract ideas that did not improve computers or networks,
but improved abstract concepts of mathematical analysis and used computers
as tools); MPEP § 2106.05(a).
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Applying the abstract ideas on a “programmed computer” and “output
device” is not an integration. See Alice, 573 U.S. at 223 (“[M]ere recitation
of a generic computer cannot transform a patent-ineligible abstract idea into
a patent-eligible invention.”) (quoting Mayo, 566 U.S. at 72); Bancorp
Servs., L.L.C. v. Sun Life Assurance Co. of Canada (U.S.), 687 F.3d 1266,
1278 (Fed. Cir. 2012) (“To salvage an otherwise patent-ineligible process, a
computer must be integral to the claimed invention, facilitating the process
in a way that a person making calculations or computations could not.”);
Versata, 793 F.3d at 1335 (“the claims at issue do not transform a general
purpose computer into a specific machine . . . .. They involve the normal,
basic functions of a computer.”); MPEP § 2106.05(c).4
Step 2B: Does Claim 2 Recite an Inventive Concept?
We next consider whether claim 1 recites elements, individually or as
an ordered combination, which provide an inventive concept. Alice, 573
U.S. at 217–18. This step is satisfied when claim limitations involve more
than performance of well-understood, routine, [and] conventional activities
previously known to the industry. Berkheimer v. HP Inc., 881 F.3d 1360,
1367 (Fed. Cir. 2018) (internal quotations and citation omitted); Revised
Guidance, 84 Fed. Reg. at 56 (explaining that the second step of the Alice
analysis considers whether a claim adds a limitation beyond a judicial
exception that is not “well-understood, routine, conventional” activity).

4 See also Finjan, Inc. v. Blue Coat Systems, Inc., 879 F.3d 1299, 1305 (Fed.
Cir. 2018) (quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1336
(Fed. Cir. 2016)) wherein the court stated, “In Enfish, for instance, the court
determined that claims related to a database architecture that used a new,
self-referential logical table were nonabstract because they focused on ‘an
improvement to computer functionality itself, not on economic or other tasks
for which a computer is used in its ordinary capacity.’”
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Individually, the limitations of claim 1 recite abstract ideas discussed
above or extra-solution activities of mere data gathering and displaying the
results of the abstract mathematical concepts, formulas, and calculations.
As an ordered combination, a new combination of abstract ideas is not
an inventive concept. See SAP, 898 F.3d at 1163 (“No matter how much of
an advance in the finance field the claims recite, the advance lies entirely in
the realm of abstract ideas, with no plausibly alleged innovation in the non-
abstract application realm. An advance of that nature is ineligible for
patenting.”); BSG Tech. LLC v. BuySeasons, Inc., 899 F.3d 1281, 1290
(Fed. Cir. 2018) (“It has been clear since Alice that a claimed invention’s use
of the ineligible concept to which it is directed cannot supply the inventive
concept that renders the invention ‘significantly more’ than that ineligible
concept.”); Final Act. 11 (calculating risk does not improve computers).
Linking the abstract ideas to a particular environment using generic
computers to receive and store data and display results of calculations that
are abstract ideas does not impose a meaningful limit on the abstract ideas.
Ans. 4–5; Digitech Image Techs, LLC v. Elec. for Imaging, Inc., 758 F.3d
1344, 1351 (Fed. Cir. 2014) (“Without additional limitations, a process that
employs mathematical algorithms to manipulate existing information to
generate additional information is not patent eligible. ‘If a claim is directed
essentially to a method of calculating, using a mathematical formula, even if
the solution is for a specific purpose, the claimed method is nonstatutory.’”)
(internal citation omitted); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d
1084, 1093–94 (Fed. Cir. 2019) (holding that the claims did not transform
routine data gathering and display of market information on a scaled price
axis or improve computer functionality to provide an inventive concept).
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Arguments about preemption (Appeal Br. 14–15) are resolved by our
§ 101 analysis. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015); see also Two-Way Media Ltd. v. Comcast Cable
Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (where patent claims
are deemed patent ineligible, “preemption concerns are fully addressed and
made moot”); see Ans. 5–6; Final Act. 3–5.
For all the foregoing reasons, we sustain the rejection of claim 1 and
claims 2–33, which fall therewith, as directed to patent-ineligible subject
matter under 35 U.S.C. § 101.
DECISION
We affirm the rejection of claims 1–33 as directed to patent-ineligible
subject matter under a judicial exception to 35 U.S.C. § 101.
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. § 1.136(a)(1)(iv); 37 C.F.R. § 41.50(f).
AFFIRMED