Chicago Mercantile Exchange Inc.

Patent Trials and Appeals Board

Jul 16, 2020

14644460 - (D) (P.T.A.B. Jul. 16, 2020)

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.
14/644,460 03/11/2015 Paul Callaway 4672-14003BUS 1095
12684 7590 07/16/2020
Lempia Summerfield Katz LLC/CME
20 South Clark Street
Suite 600
Chicago, IL 60603
EXAMINER
BRIDGES, CHRISTOPHER
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
07/16/2020 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):
docket-us@lsk-iplaw.com
mail@lsk-iplaw.com
pair_lsk@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL CALLAWAY, SEAN CASTETTE, KIREETI REDDY,
AKIRA YAMAGUCHI, JOSE ANTONIO ACUÑA-ROHTER,
PEARCE PECK-WALDEN, and ZACHARY BONIG
Appeal 2020-000812
Application 14/644,460
Technology Center 3600
Before LARRY J. HUME, BETH Z. SHAW, and CARL L. SILVERMAN,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–6, 8–10, 13, 15–20, 22, 23, 25, and
27, which are all rejections pending in the application. Appellant has
canceled claims 7, 11, 12, 14, 21, 24, and 26. See Appeal Br. 15 et seq. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Chicago Mercantile
Exchange Inc. Appeal Br. 2.
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STATEMENT OF THE CASE2
The claims are directed to a market operation through regulation of
incoming order match allocation and/or dynamic resting order match
allocation priorities. See Spec. (Title). In particular, Appellant’s disclosed
embodiments and claimed invention
relate to systems and methods which match or otherwise
allocate an incoming order to trade with “resting,” i.e.
previously received but not yet matched (fully satisfied), orders,
recognizing that the algorithm or rules by which the incoming
order is matched/allocated may affect the operation of the
market for the financial product being traded. In particular, the
disclosed embodiments relate to regulation of a rate of
incoming orders by buffering or otherwise batching orders
together as they are received and subsequently forwarding
batches of orders to a match engine for processing thereby in a
manner which may equalize orders from traders having varying
abilities to rapidly submit orders or otherwise capitalize on
market events.
Spec. ¶ 12.

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
May 29, 2019); Reply Brief (“Reply Br.,” filed Nov. 11, 2019); Examiner’s
Answer (“Ans.,” mailed Sept. 13, 2019); Final Office Action (“Final Act.,”
mailed Jan. 18, 2019); and the original Specification (“Spec.,” filed
Mar. 11, 2015) (claiming benefit of US 61/951,147, filed Mar. 11, 2014).
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Exemplary Claim
Claim 17, reproduced below, is representative of the subject matter on
Appeal:
17. A computer implemented method of regulating
incoming order allocation in an electronic trading system, the
electronic trading system comprising a match engine which
implements a market for an associated financial instrument by
being operative to attempt to match an incoming order for a
transaction for the associated financial instrument with at least
one other previously received but unsatisfied order for a
transaction counter thereto for the associated financial
instrument, to at least partially satisfy one or both of the
incoming order or the at least one other previously received
order, the method comprising:
determining, by an incoming order processor, an
occurrence of an event, wherein the event comprises one of an
elapse of an interval of time, receipt of an acknowledgment
from the match engine acknowledging receipt of previously
forwarded incoming orders, or where the number of stored
received incoming orders exceeds a threshold;
receiving, by the incoming order processor, an incoming
order and storing the received incoming order in a memory
coupled with the incoming order processor; [ ]
forwarding, automatically by the incoming order
processor, upon the occurrence of the event, at least a subset of
the stored received incoming orders to the match engine; and
allowing a subsequently received incoming order to
modify or cancel a stored received incoming order prior to a
forwarding thereof to the match engine.

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REJECTION
Claims 1–6, 8–10, 13, 15–20, 22, 23, 25, and 27 stand rejected under
35 U.S.C. § 101 because the claimed invention is directed to a judicial
exception (i.e., a law of nature, a natural phenomenon, or abstract idea)
without significantly more. Final Act. 2.
CLAIM GROUPING
Based on Appellant’s arguments (Appeal Br. 4–14) and our discretion
under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of patent-ineligible
subject matter Rejection R1 of claims 1–6, 8–10, 13, 15–20, 22, 23, 25, and
27 on the basis of representative claim 1.3
ISSUE
Appellant argues (Appeal Br. 4–14; Reply Br. 1–6) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 101 as being directed to patent-
ineligible subject matter is in error. These contentions present us with the
following issue:
Under the USPTO’s Revised Guidance, informed by our governing
case law concerning 35 U.S.C. § 101, is claim 1 patent-ineligible under
§ 101?

3 “Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv).
In addition, when Appellant does not separately argue the patentability of
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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PRINCIPLES OF LAW
A. 35 U.S.C. § 101
An invention is patent-eligible if it is a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.4
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include
implicit exceptions: “[l]aws of nature, natural phenomena, and abstract
ideas” are not patentable. Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 70 (2012) (brackets in original) (citing Diamond v. Diehr,
450 U.S. 175, 185 (1981)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014)
(citing Mayo, 566 U.S. at 75–77). In accordance with that framework, we
first determine what concept the claim is “directed to.” See Alice, 573 U.S.
at 219 (“On their face, the claims before us are drawn to the concept of
intermediated settlement, i.e., the use of a third party to mitigate settlement
risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk . . . .”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental

4 This threshold analysis of whether a claim is directed to one of the four
statutory categories of invention, i.e., a process, machine, manufacture, or
composition of matter, is referred to as “Step 1” in the USPTO’s patent-
eligibility analysis under § 101. MPEP § 2106.
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economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
determined to be patent eligible include physical and chemical processes,
such as “molding rubber products” (Diehr, 450 U.S. at 191); “tanning,
dyeing, making water-proof cloth, vulcanizing India rubber, smelting ores”
(id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853)));
and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v.
Deener, 94 U.S. 780, 785 (1876))).
Abstract ideas may include, but are not limited to, fundamental
economic practices, methods of organizing human activities, and
mathematical formulas or relationships. Alice, 573 U.S. at 217–21. Under
this guidance, we must therefore ensure at step one that we articulate what
the claims are directed to with enough specificity to ensure the step one
inquiry is meaningful. Id. at 217 (“[W]e tread carefully in construing this
exclusionary principle lest it swallow all of patent law.”).
Examples of claims that do not recite mental processes because they
cannot be practically performed in the human mind include: (a) a claim to a
method for calculating an absolute position of a GPS receiver and an
absolute time of reception of satellite signals, where the claimed GPS
receiver calculated pseudoranges that estimated the distance from the GPS
receiver to a plurality of satellites, SiRF Technology, Inc. v. International
Trade Commission, 601 F.3d 1319, 1331–33 (Fed. Cir. 2010); (b) a claim to
detecting suspicious activity by using network monitors and analyzing
network packets, SRI International, Inc. v. Cisco Systems, Inc., 930 F.3d
1295, 1304 (Fed. Cir. 2019); (c) a claim to a specific data encryption method
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for computer communication involving a several-step manipulation of data,
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1149 (Fed.
Cir. 2016) (distinguishing TQP Development, LLC v. Intuit Inc., 2014 WL
651935 (E.D. Tex. Feb. 19, 2014)) (the specific data encryption method
“could not conceivably be performed in the human mind or with pencil and
paper”). Whereas a claim limitation to a process that “can be performed in
the human mind, or by a human using a pen and paper” qualifies as a mental
process, a claim limitation that “could not, as a practical matter, be
performed entirely in a human’s mind” (even if aided with pen and paper)
would not qualify as a mental process.5
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held “[a] claim drawn to subject matter otherwise statutory
does not become nonstatutory simply because it uses a mathematical
formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view
respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, and this principle cannot be circumvented by attempting
to limit the use of the formula to a particular technological environment.”
Id. (citation omitted) (citing Benson and Flook); see, e.g., id. at 187 (“It is
now commonplace that an application of a law of nature or mathematical

5 CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1372, 1375–
76 (Fed. Cir. 2011) (distinguishing Research Corp. Techs. v. Microsoft
Corp., 627 F.3d 859 (Fed. Cir. 2010), and SiRF Tech., Inc. v. Int’l Trade
Comm’n, 601 F.3d 1319 (Fed. Cir. 2010)).
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formula to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘“inventive
concept”’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (citation omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure ‘that
the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77).
“[M]erely requir[ing] generic computer implementation[] fail[s] to transform
that abstract idea into a patent-eligible invention.” Id.
B. USPTO Revised Guidance
The PTO published revised guidance in the Federal Register
concerning the application of § 101. 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (hereinafter “Revised
Guidance”) (https://www.govinfo.gov/content/pkg/FR-2019-01-
07/pdf/2018-28282.pdf). All USPTO personnel are, as a matter of internal
agency management, expected to follow the guidance.” Id. at 51; see also
October 2019 Update at 1 (October 2019 Update: Subject Matter Eligibility)
(hereinafter “October 2019 Update”).
Under the Revised Guidance, we first look to whether the claim
recites:
(1) any judicial exceptions, including certain groupings
of abstract ideas (i.e., mathematical concepts, certain methods
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of organizing human activity such as a fundamental economic
practice, or mental processes);6 and
(2) additional elements that integrate the judicial
exception into a practical application (see Manual for Patent
Examining Procedure (“MPEP”) §§ 2106.05(a)–(c), (e)–(h)).7
See Revised Guidance 52–53.
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial
exception that is not “well-understood, routine, conventional”
in the field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine,
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.8
See Revised Guidance 56.
Step 2A(i) – Abstract Idea
Informed by our judicial precedent, the Revised Guidance extracts and
synthesizes key concepts identified by the courts as abstract ideas to explain
that the abstract idea exception includes the following groupings of subject
matter, when recited as such in a claim limitation:
(a) Mathematical concepts—mathematical relationships,
mathematical formulas or equations, mathematical calculations;

6 Referred to as “Revised Step 2A, Prong 1” in the Revised Guidance
(hereinafter “Step 2A(i)”).
7 Referred to as “Revised Step 2A, Prong 2” in the Revised Guidance
(hereinafter “Step 2A(ii)”).
8 Items (3) and (4) continue to be collectively referred to as “Step 2B” of the
Supreme Court’s two-step framework, described in Mayo and Alice.
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(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 52 (footnotes omitted).
Under the Revised Guidance, if the claim does not recite a judicial
exception (a law of nature, natural phenomenon, or subject matter within the
enumerated groupings of abstract ideas above), then the claim is patent-
eligible at Step 2A(i). This determination concludes the eligibility analysis,
except in situations identified in the Revised Guidance.9
However, if the claim recites a judicial exception (i.e., an abstract idea
enumerated above, a law of nature, or a natural phenomenon), the claim
requires further analysis for a practical application of the judicial exception
in Step 2A(ii).
Step 2A(ii) – Practical Application
If a claim recites a judicial exception in Step 2A(i), we determine
whether the recited judicial exception is integrated into a practical

9 In the rare circumstance in which an examiner believes a claim limitation
that does not fall within the enumerated groupings of abstract ideas should
nonetheless be treated as reciting an abstract idea, the procedure described in
of the Guidance for analyzing the claim should be followed. See Revised
Guidance, Section III.C.
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application of that exception in Step 2A(ii) 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.
The seven identified “practical application” sections of the MPEP,10
cited in the Revised Guidance under Step 2A(ii), are:
(1) MPEP § 2106.05(a) Improvements to the Functioning of
a Computer or To Any Other Technology or Technical
Field
(2) MPEP § 2106.05(b) Particular Machine
(3) MPEP § 2106.05(c) Particular Transformation
(4) MPEP § 2106.05(e) Other Meaningful Limitations
(5) MPEP § 2106.05(f) Mere Instructions To Apply An
Exception
(6) MPEP § 2106.05(g) Insignificant Extra-Solution Activity
(7) MPEP § 2106.05(h) Field of Use and Technological
Environment
See Revised Guidance 55.
If the recited judicial exception is integrated into a practical
application as determined under one or more of the MPEP sections cited
above, then the claim is not directed to the judicial exception, and the patent-

10 See MPEP § 2106.05(a)–(c), (e)–(h). Citations to the MPEP herein refer
to revision [R-08.2017]. Sections 2106.05(a), (b), (c), and (e) are indicative
of integration into a practical application, while § 2106.05(f), (g), and (h)
relate to limitations that are not indicative of integration into a practical
application.
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eligibility inquiry ends. See Revised Guidance 54. If not, then analysis
proceeds to Step 2B.
Step 2B – “Inventive Concept” or “Significantly More”
Under our reviewing courts’ precedent, it is possible that a claim that
does not “integrate” a recited judicial exception under Step 2A(ii) is
nonetheless patent eligible. For example, the claim may recite additional
elements that render the claim patent eligible even though one or more claim
elements may recite a judicial exception.11 The Federal Circuit has held
claims eligible at the second step of the Alice/Mayo test (USPTO Step 2B)
because the additional elements recited in the claims provided “significantly
more” than the recited judicial exception (e.g., because the additional
elements were unconventional in combination).12 Therefore, if a claim has
been determined to be directed to a judicial exception under Revised Step
2A, we must also evaluate the additional elements individually and in
combination under Step 2B to determine whether they provide an inventive
concept (i.e., whether the additional elements amount to significantly more
than the exception itself).13

11 See, e.g., Diehr, 450 U.S. at 187.
12 See, e.g., Amdocs, Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1300,
1304 (Fed. Cir. 2016); BASCOM Glob. Internet Servs., Inc. v. AT&T
Mobility LLC, 827 F.3d 1341, 1349–52 (Fed. Cir. 2016); DDR Holdings v.
Hotels.com, L.P., 773 F.3d 1245, 1257–59 (Fed. Cir. 2014).
13 The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, Inc. v. First Choice Loan Servs. Inc., 811 F.3d 1314, 1325
(Fed. Cir. 2016). In particular, “[t]he question of whether a claim element or
combination of elements is well-understood, routine and conventional to a
skilled artisan in the relevant field is a question of fact.” Berkheimer v. HP
Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018).
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Under the Revised Guidance, we must consider in Step 2B whether an
additional element or combination of elements: (1) “Adds a specific
limitation or combination of limitations that are not well-understood,
routine, conventional activity in the field, which is indicative that an
inventive concept may be present;” or (2) “simply appends well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality, to the judicial exception, which is indicative
that an inventive concept may not be present.” See Revised Guidance,
Section III.B.14
In the Step 2B analysis, an additional element (or combination of
elements) is not well-understood, routine or conventional unless the
examiner finds an evidentiary basis, and expressly supports a rejection in
writing with, one or more of the following:
1. A citation to an express statement in the
specification or to a statement made by an applicant during
prosecution that demonstrates the well-understood, routine,
conventional nature of the additional element(s). . . .
2. A citation to one or more of the court decisions
discussed in MPEP § 2106.05(d)(II) as noting the well-

14 In accordance with existing Step 2B guidance, an Examiner’s finding that
an additional element (or combination of elements) is well understood,
routine, conventional activity must be supported with at least one of the four
specific types of evidence required by the USPTO Berkheimer
Memorandum, as shown above. For more information concerning evaluation
of well-understood, routine, conventional activity, see MPEP § 2106.05(d),
as modified by the USPTO Berkheimer Memorandum (USPTO
Commissioner for Patents Memorandum dated Apr. 19, 2018, “Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Eligibility Decision (Berkheimer v. HP, Inc.)” (hereinafter
“Berkheimer Memo”).
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understood, routine, conventional nature of the additional
element(s).
3. A citation to a publication that demonstrates the
well-understood, routine, conventional nature of the additional
element(s). . . .
4. A statement that the examiner is taking official
notice of the well-understood, routine, conventional nature of
the additional element(s). . . .
See Berkheimer Memo 3–4.
If the Examiner or the Board determines under Step 2B that the
element (or combination of elements) amounts to significantly more than the
exception itself, the claim is eligible, thereby concluding the eligibility
analysis.
However, if a determination is made that the element and combination
of elements do not amount to significantly more than the exception itself, the
claim is ineligible under Step 2B, and the claim should be rejected for lack of
subject matter eligibility.
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellant. To the extent Appellant has 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 disagree with Appellant’s arguments with respect to claims 1–6,
8–10, 13, 15–20, 22, 23, 25, and 27 and, unless otherwise noted, we
incorporate by reference herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer
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in response to Appellant’s arguments. We highlight and address specific
findings and arguments regarding claim 1 for emphasis as follows.
ANALYSIS
Analysis
Step 1 – Statutory Category
Claim 17, as a method (process) claim, recites one of the enumerated
categories of eligible subject matter in 35 U.S.C. § 101. Therefore, the issue
before us is whether it is directed to a judicial exception without
significantly more.
Step 2A(i): Does the Claim Recite a Judicial Exception?
The Examiner determined:
[T]he claims recite a series of steps to regulate incoming order
allocation and trade matching which is a fundamental economic
practice and commercial or legal interaction and thus grouped
as a certain methods of organizing human activity. Matching
incoming trade orders with unsatisfied trade orders is a long
standing contractual interaction. Furthermore, the series of steps
are similar to steps that can be completed manually in the
human mind which are thus grouped as mental processes.
Final Act. 2–3 (emphasis added).
We conclude claim 17 does not recite the judicial exceptions of either
natural phenomena or laws of nature. We evaluate, de novo, whether
claim 17 recites an abstract idea based upon the Revised Guidance.
First, we look to the Specification to provide context as to what the
claimed invention is directed to. In this case, the Specification discloses that
“[t]he disclosed embodiments relate to systems and methods which match or
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otherwise allocate an incoming order to trade with ‘resting,’ i.e. previously
received but not yet matched (fully satisfied), orders, recognizing that the
algorithm or rules by which the incoming order is matched/allocated may
affect the operation of the market for the financial product being traded.”
Spec. ¶ 12.
Appellant’s Abstract describes the invention as:
The disclosed embodiments relate to systems and
methods which match or otherwise allocate an incoming order
to trade with “resting,” i.e. previously received but not yet
matched (fully satisfied), orders, recognizing that the algorithm
or rules by which the incoming order is matched/allocated may
affect the operation of the market for the financial product
being traded. In particular, the disclosed embodiments relate to
regulation of a rate of incoming orders by buffering or
otherwise batching orders together as they are received and
subsequently forwarding batches of orders to a match engine
for processing thereby in a manner which may equalize orders
from traders having varying abilities to rapid submit orders or
otherwise capitalize on market events. The disclosed
embodiments further relate to prioritizing the matching of
resting orders against an incoming order. In particular, the
disclosed embodiments alter the priority of a given resting order
to match against an incoming order, relative to other suitably
matching resting orders, as a function of how long the orders
have been resting on the order book.
Spec. 77 (Abstract).
In TABLE I below, we identify in italics the specific claim limitations
in claim 17 that we conclude recite an abstract idea. We additionally
identify in bold the additional (non-abstract) claim limitations that are
generic computer components and techniques, and underline limitations
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representing extra or post-solution activity (bracketed labeling added for
clarity):
TABLE I
Independent Claim 17 Revised Guidance
[L0] A computer implemented
method of regulating incoming
order allocation in an
electronic trading system, the
electronic trading system
comprising a match engine
which implements a market for
an associated financial
instrument by being operative
to attempt to match an
incoming order for a
transaction for the associated
financial instrument with at
least one other previously
received but unsatisfied order
for a transaction counter
thereto for the associated
financial instrument, to at least
partially satisfy one or both of
the incoming order or the at
least one other previously
received order, the method
comprising:
A process (method) is a statutory subject
matter class. See 35 U.S.C. § 101. See 35
U.S.C. § 101 (“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.”).
As claimed, an electronic trading system
having a match engine represents generic
computer components. See Spec. ¶ 49
(“The electronic trading system 100 may
be implemented with one or more
mainframe, desktop or other computers,
such as the computer 400 described
below with respect to Figure 4. . . . A
match engine module 106 may be
included to match bid and offer prices
and may be implemented with software
that executes one or more algorithms for
matching bids and offers as will be
described in more detail below with
respect to Figure 2.”).
[L1] determining, by an
incoming order processor, an
occurrence of an event,
wherein the event comprises
one of an elapse of an interval
of time, receipt of an
acknowledgment from the
“[D]etermining . . . an occurrence of an
event” such as elapsed time, is an
abstract idea, i.e., an observation,
evaluation, judgment, opinion” which
could be performed as a mental process.
See Revised Guidance 52.
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Independent Claim 17 Revised Guidance
match engine acknowledging
receipt of previously forwarded
incoming orders, or where the
number of stored received
incoming orders exceeds a
threshold;
As claimed, an incoming order processor
represents a generic computer
component.
[L2a] receiving, by the
incoming order processor, an
incoming order and

[L2b] storing the received
incoming order in

[L2c] a memory coupled with
the incoming order
processor; [ ]
Receiving information, i.e., data
gathering, is merely insignificant extra-
solution activity that does not add
significantly more to the abstract idea
to render the claimed invention patent-
eligible. Revised Guidance 55, n.31;
see In re Bilski, 545 F.3d 943, 962
(Fed. Cir. 2008) (en banc), aff’d on
other grounds, 561 U.S. 593 (2010)
(“[T]he involvement of the machine or
transformation in the claimed process
must not merely be insignificant extra-
solution activity”)
Storing information is insignificant
extra-solution activity. 2019 Revised
Guidance; see also MPEP § 2106.05(g).
As claimed, a memory coupled to a
processor is a generic computer
arrangement.
[L3] forwarding, automatically
by the incoming order
processor, upon the occurrence
of the event, at least a subset of
the stored received incoming
orders to the match engine; and
Communicating or forwarding
information such as some or all of the
received incoming orders is
insignificant post-solution activity.
Revised Guidance 55, n.31; see also
MPEP § 2106.05(g); and see buySAFE,
Inc. v. Google, Inc., 765 F.3d 1350,
1355 (Fed. Cir. 2014) (computer
receives and sends information over a
network).
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Independent Claim 17 Revised Guidance
[L4] allowing a subsequently
received incoming order to
modify or cancel a stored
received incoming order prior
to a forwarding thereof to the
match engine.
Allowing modification or cancellation
of a previously received (stored) order
is an abstract idea, i.e., “Certain
methods of organizing human activity
. . . including . . . commercial
interactions . . . in the form of . . .
advertising, marketing or sales
activities”. See Revised Guidance 52.
Appeal Br. 15 (Claims App.).
Under the broadest reasonable interpretation standard,15 we conclude
limitations [L1] through [L4] of method claim 17 recite steps that would
ordinarily occur when implementing a market for financial instrument by
attempting to match an incoming order for a transaction for the financial
instrument with at least one other previously received but unsatisfied order
for a transaction counter for the financial instrument. See claim 17
(preamble, limitation [L0]); and see Final Act. 2–3; Ans. 3–4. For example,
receiving and storing orders, and allowing a subsequently received incoming
order to modify or cancel a previously received incoming order prior to
forwarding the order for execution are operations that generally occur when

15 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).
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trade-matching orders with counter orders to fulfill contractual requirements.
Further, limitations [L1] (“determining . . . an occurrence of an event”), and
[L4] (“allowing a subsequently received incoming order to modify or cancel
a stored received incoming order prior to a forwarding thereof”) recite
abstract ideas, whether initiated person-to-person, on paper, or using a
computer.
In agreement with the Examiner as quoted above, we determine that
claim 17, as a whole, recites a certain method of organizing human activity,
i.e., a fundamental economic practice and commercial or legal interaction
that may also be performed by pen and paper. This type of activity, i.e.,
implementing a market for financial instrument by attempting to match an
incoming order for a transaction for the financial instrument with at least one
other previously received but unsatisfied order for a transaction counter for
the financial instrument, as recited by limitations [L1] through [L4], for
example, and aside from any computer-related aspects, includes
longstanding conduct that existed well before the advent of computers and
the Internet, and could be carried out by a human with pen and paper. See
CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir.
2011) (“That purely mental processes can be unpatentable, even when
performed by a computer, was precisely the holding of the Supreme Court in
Gottschalk v. Benson.”).16

16 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 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does
not, “impact the patentability analysis.” Id. at 1241. Further, “[t]he Board’s
slight revision of its abstract idea analysis does not impact the patentability
analysis.” Id. Moreover, merely combining several abstract ideas does not
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Thus, under Step 2A(i), we agree with the Examiner that claim 17’s
“method of regulating incoming order allocation in an electronic trading
system” recites abstract ideas and conclude, under our Revised Guidance,
claim 17 recites a judicial exception of allowing a subsequently received
incoming order to modify or cancel a stored received incoming order prior to
a forwarding thereof, i.e., a fundamental economic practice, and thus is an
abstract idea.
Step 2A(ii): Judicial Exception Integrated into a Practical Application?
If the claims are directed to a judicial exception, as we conclude
above, we proceed to the “practical application” Step 2A(ii) in which 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.
Finjan
In this phase of analysis, Appellant argues, similar to Finjan, “the
claims recite an improvement to communications technology[,] not merely a
business improvement.” Appeal Br. 8. “
The claims were held patent eligible [in Finjan] because the
court concluded that the claimed method recites specific steps

render the combination any less abstract. RecogniCorp, LLC v. Nintendo
Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea (math)
to another abstract idea . . . does not render the claim non-abstract.”); see
also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed.
Cir. 2016) (determining the pending claims were directed to a combination
of abstract ideas).
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that accomplish a result that realizes an improvement in
computer functionality. Similarly, in the current application the
claims recite an improvement over the traditional transaction
processing systems that process incoming transactions strictly
based on time/order of receipt.
Id.
We are not persuaded by Appellant’s comparison of the claims on
appeal to the claims in Finjan, Inc. v. Blue Coat Systems., Inc., 879 F.3d
1299, 1303 (Fed. Cir. 2018). In Finjan, the court found that claims directed
to a behavior-based virus scan constituted an improvement in computer
functionality over the “traditional, ‘code-matching’ virus scans.” Id. at
1304. The court determined that the claimed method employs a new kind of
file, allows access to be tailored for different users, and allows the system to
accumulate and use newly available, behavior-based information about
potential threats. Id. at 1305. The court ultimately held that the claims are
“directed to a non-abstract improvement in computer functionality, rather
than the abstract idea of computer security,” and “recite specific steps—
generating a security profile that identifies suspicious code and linking it to a
downloadable—that accomplish the desired result.” Id.
Unlike the claims of Finjan, claim 17 fails to employ a newly
generated file containing security profile in a downloadable, and does not
use a new file to enable a computer security system to improve on or add a
computer functionality by reciting specific steps accomplishing the desired
security results, and Appellant does not provide a persuasive analogy of the
appealed claims to those found patent-eligible in Finjan. Instead, Appellant
merely argues “[s]imilarly, in the current application the claims recite an
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improvement over the traditional transaction processing systems that process
incoming transactions strictly based on time/order of receipt.” Appeal Br. 8.
Appellant further argues, “[t]he claimed invention is a specific and
practical application which improves upon the ability to manage and allocate
incoming orders, by regulating and temporally normalizing the influx of
transaction requests for subsequent matching against previously received
transactions,” and “similar to Finjan (and DDR), the claims provide an
improvement to a specific technology and as such are not abstract.” Appeal
Br. 9.
Thus, we are not persuaded Appellant’s claims are analogous to the
claims in Finjan in a manner sufficient to render the claims patent-eligible
by integrating the recited abstract idea into a practical application.
Ex parte Smith
Appellant additionally argues that our informative decision in Ex
parte Smith, Appeal No. 2018-000064, designated March 19, 2019, is both
informative and instructive to render the claims on Appeal patent-eligible.
Appeal Br. 13. Appellant asserts, in Smith, the Board concluded that “the
use of claimed timing mechanisms and the associated temporary restraints
on execution of trades provide a specific technological improvement over
prior derivatives trading systems.” Appeal Br. 13 (quoting Smith at 9).
Appellant further argues that “the buffering of incoming transaction
into a memory and automated forwarding of those buffered transactions
upon occurrence of an event while allowing subsequently received
transactions to modify or cancel yet-to-be forwarded transactions is just as
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technological as delaying execution with a timer and used to improve prior
trading systems.” Appeal Br. 13–14 (citation omitted).17
We are not persuaded that any limitation of claim 17 integrates the
recited abstract idea, i.e., allowing a subsequently received incoming order
to modify or cancel a stored received incoming order prior to a forwarding
thereof, into a practical application.
Our Analysis
As to the specific limitations, we conclude limitation [L2a]
(“receiving . . . an incoming order”) recites insignificant data gathering. See
MPEP § 2106.05(g). Data gathering, as performed by the step or function in
Appellant’s claims, is a classic example of insignificant extra-solution
activity. See, e.g., In re Bilski, 545 F.3d 943, 963 (Fed. Cir. 2008) (en banc),
aff’d sub nom, Bilski v. Kappos, 561 U.S. 593 (2010).
We also conclude limitations [L2b] (“storing the received incoming
order”) and [L3] (“forwarding . . . a subset of the stored received incoming
orders”) recite insignificant extra or post-solution activity.18 The Supreme
Court guides that the “prohibition against patenting abstract ideas ‘cannot be
circumvented by’ . . . adding ‘insignificant postsolution activity.’” Bilski,
561 U.S. at 610–11 (quoting Diehr, 450 U.S. at 191–92).
We also determine that limitations [L0] (“an electronic trading system
. . . comprising a match engine”), and [L2c] (“a memory coupled with the

17 We note the claim does not recite “buffering” an incoming transaction,
but instead recites “storing” the transactions in a memory. See limitation
[L2b], above, and our related discussion, infra.
18 We also note the “determining” step [L1] can be carried out by a human
in the mind or by use of pen and paper. See CyberSource, 654 F.3d at 1375.
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incoming order processor”), as claimed, recite generic computer components
and functionality. On this record, we are of the view that Appellant’s claims
do not operate the recited generic computer components in an
unconventional manner to achieve an improvement in computer
functionality. See MPEP § 2106.05(a).
We find each of the limitations of claim 17 either recite abstract ideas,
extra or post-solution activity, or generic computer components and
techniques, as identified in Step 2A(i), supra, and none of the limitations
integrate the judicial exception of allowing a subsequently received
incoming order to modify or cancel a stored received incoming order prior to
a forwarding thereof into a practical application as determined under one or
more of the MPEP sections cited above. The claim as a whole merely uses
instructions to implement the abstract idea on a computer or, alternatively,
merely uses a computer as a tool to perform the abstract idea.
Under analogous circumstances, the Federal Circuit has held that
“[t]his is a quintessential ‘do it on a computer’ patent: it acknowledges that
[such] data . . . was previously collected, analyzed, manipulated, and
displayed manually, and it simply proposes doing so with a computer. We
have held such claims are directed to abstract ideas.” Univ. of Fla. Research
Found., Inc. v. Gen. Elec. Co., 916 F.3d 1363, 1367 (Fed. Cir. 2019); see
also Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1351 (Fed. Cir.
2016) (“Though lengthy and numerous, the claims do not go beyond
requiring the collection, analysis, and display of available information in a
particular field, stating those functions in general terms, without limiting
them to technical means for performing the functions that are arguably an
advance over conventional computer and network technology.”).
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Therefore, the claim as a whole merely uses instructions to implement
the abstract idea on a computer or, alternatively, merely uses a computer as a
tool to perform the abstract idea. Thus, on this record, Appellant has not
shown an improvement or practical application under the guidance of MPEP
section 2106.05(a) (“Improvements to the Functioning of a Computer or to
Any Other Technology or Technical Field”) or section 2106.05(e) (“Other
Meaningful Limitations”). Nor does Appellant advance any arguments in
the Brief(s) that are directed to the Bilski machine-or-transformation test,
which would only be applicable to the method (process) claims on appeal.
See MPEP §§ 2106.05(b) (Particular Machine) and 2106.05(c) (Particular
Transformation).
Therefore, we conclude the abstract idea is not integrated into a
practical application, and thus the claim is directed to the judicial exception.
Step 2B – “Inventive Concept” or “Significantly More”
If the claims are directed to a judicial exception, and not integrated
into a practical application, as we conclude above, we proceed to the
“inventive concept” step. For Step 2B we must “look with more specificity
at what the claim elements add, in order to determine ‘whether they identify
an “inventive concept” in the application of the ineligible subject matter’ to
which the claim is directed.” Affinity Labs, 838 F.3d at 1258.
In applying step two of the Alice analysis, our reviewing court guides
we must “determine whether the claims do significantly more than simply
describe [the] abstract method” and thus transform the abstract idea into
patentable subject matter. Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709,
715 (Fed. Cir. 2014). We look to see whether there are any “additional
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features” in the claims that constitute an “inventive concept,” thereby
rendering the claims eligible for patenting even if they are directed to an
abstract idea. Alice, 573 U.S. at 221. Those “additional features” must be
more than “well-understood, routine, conventional activity.” Mayo, 566
U.S. at 79.
Limitations referenced in Alice that are not enough to qualify as
“significantly more” when recited in a claim with an abstract idea include, as
non-limiting or non-exclusive examples: adding the words “apply it” (or an
equivalent) with an abstract idea19; mere instructions to implement an
abstract idea on a computer20; or requiring no more than a generic computer
to perform generic computer functions that are well-understood, routine, and
conventional activities previously known to the industry.21
Evaluating representative claim 17 under step 2 of the Alice analysis,
we conclude it lacks an inventive concept that transforms the abstract idea of
allowing a subsequently received incoming order to modify or cancel a
stored received incoming order prior to a forwarding thereof into a patent-
eligible application of that abstract idea.
The patent eligibility inquiry may contain underlying issues of fact.
Mortg. Grader, 811 F.3d at 1325. In particular, “[t]he question of whether a
claim element or combination of elements is well-understood, routine and

19 Alice, 573 U.S. at 221–23.
20 Alice, 573 U.S. at 222–23, e.g., simply implementing a mathematical
principle on a physical machine, namely a computer.
21 Alice, 573 U.S. at 225 (explaining using a computer to obtain data, adjust
account balances, and issue automated instructions involves computer
functions that are well-understood, routine, conventional activities).
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conventional to a skilled artisan in the relevant field is a question of fact.”
Berkheimer, 881 F.3d at 1368.
As evidence of the conventional nature of the recited “electronic
trading system,” “match engine,” “incoming order processor,” and “memory
coupled with the incoming order processor” in method claim 17; and similar
recitations in system claims 1 and 3, the Specification discloses:
The electronic trading system 100 may be implemented
with one or more mainframe, desktop or other computers, such
as the computer 400 described below with respect to Figure
4. . . . A match engine module 106 may be included to match
bid and offer prices and may be implemented with software that
executes one or more algorithms for matching bids and offers
as will be described in more detail below with respect to
Figure 2. . . . An order processing module 136 may be included
to decompose delta based and bulk order types for processing
by the order book module 110 and/or match engine module
106.
. . . . Each computer device, which may comprise a
computer 400 described in more detail below with respect to
Figure 4, may include a central processor that controls the
overall operation of the computer and a system bus that
connects the central processor to one or more conventional
components, such as a network card or modem. Each computer
device may also include a variety of interface units and drives
for reading and writing data or files and communicating with
other computer devices and with the exchange computer system
100. Depending on the type of computer device, a user can
interact with the computer with a keyboard, pointing device,
microphone, pen device or other input device now available or
later developed.
Spec. ¶¶ 49–50.
Thus, because the Specification describes the additional elements in
general terms, without describing the particulars, we conclude the claim
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limitations may be broadly but reasonably construed as reciting conventional
computer components and techniques, particularly in light of Appellants’
Specification, as quoted above.22
With respect to this step of the analysis, Appellant argues:
The combination of steps recited show that the claim is
not to the idea of undertaking a financial transaction, but rather
that the steps impose meaningful limits that allow for
aggregating incoming transactions into a computer memory
until the occurrence of an event, thereby normalizing their in-
flow, after which the buffered transactions are processed
together, while allowing pending transactions waiting in the
buffer to be modified by a later transaction. Thus, the claim
amounts to significantly more than the judicial exception and
are neither routine [n]or conventional in the field.
Appeal Br. 10.
We disagree with Appellant’s assertion because Appellant’s
arguments are not commensurate with the scope of the claim, which do not
clearly recite “aggregating incoming transactions” or “normalizing their
inflow.” See Intellectual Ventures I LLC v. Capital One Bank (USA), 792
F.3d 1363, 1370 (Fed. Cir. 2015) (holding that “merely adding computer
functionality to increase the speed or efficiency of the process does not
confer patent eligibility on an otherwise abstract idea”); OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015) (“[R]elying on a
computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.”); see also FairWarning IP,
LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1095 (Fed. Cir. 2016).

22 See n.15, supra.
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We further disagree because the MPEP, based upon our precedential
guidance, provides additional considerations with respect to analysis of the
well-understood, routine, and conventional nature of the recited computer-
related components.
Another consideration when determining whether a claim
recites significantly more than a judicial exception is whether
the additional elements amount to more than a recitation of the
words “apply it” (or an equivalent) or are more than mere
instructions to implement an abstract idea or other exception on
a computer. As explained by the Supreme Court, in order to
transform a judicial exception into a patent-eligible application,
the additional element or combination of elements must do
“‘more than simply stat[e] the [judicial exception] while adding
the words ‘apply it’”. Alice Corp. v. CLS Bank, 573 U.S. __,
134 S. Ct. 2347, 2357, 110 USPQ2d 1976, 1982-83 (2014)
(quoting Mayo Collaborative Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 72, 101 USPQ2d 1961, 1965). Thus, for example,
claims that amount to nothing more than an instruction to apply
the abstract idea using a generic computer do not render an
abstract idea eligible. Alice Corp., 134 S. Ct. at 2358, 110
USPQ2d at 1983. See also 134 S. Ct. at 2389, 110 USPQ2d at
1984 (warning against a § 101 analysis that turns on “the
draftsman’s art”) . . . .
In Alice Corp., the claim recited the concept of
intermediated settlement as performed by a generic computer.
The Court found that the recitation of the computer in the claim
amounted to mere instructions to apply the abstract idea on a
generic computer. 134 S. Ct. at 2359-60, 110 USPQ2d at 1984.
The Supreme Court also discussed this concept in an earlier
case, Gottschalk v. Benson, 409 U.S. 63, 70, 175 USPQ 673,
676 (1972), where the claim recited a process for converting
binary-coded decimal (BCD) numerals into pure binary
numbers. The Court found that the claimed process had no
substantial practical application except in connection with a
computer. Benson, 409 U.S. at 71-72, 175 USPQ at 676. The
claim simply stated a judicial exception (e.g., law of nature or
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abstract idea) while effectively adding words that “apply it” in a
computer. Id.
MPEP § 2106.05(f) (“Mere Instructions To Apply An Exception”).
With respect to the Step 2B analysis, we conclude, similar to Alice, the
recitation of a method that includes that includes the recited electronic
trading system, match engine, and memory coupled with the incoming order
processor is simply not enough to transform the patent-ineligible abstract
idea here into a patent-eligible invention under Step 2B. See Alice, 573 U.S.
at 221 (“[C]laims, which merely require generic computer implementation,
fail to transform [an] abstract idea into a patent-eligible invention.”).
We conclude the claims fail the Step 2B analysis because claim 1, in
essence, merely recites various computer-based elements along with no
more than mere instructions to implement the identified abstract idea using
the computer-based elements.
Therefore, in light of the foregoing, we conclude, under the Revised
Guidance, that each of Appellant’s claims 1–6, 8–10, 13, 15–20, 22, 23, 25,
and 27, considered as a whole, is directed to a patent-ineligible abstract idea
that is not integrated into a practical application and does not include an
inventive concept. Accordingly, we sustain the Examiner’s § 101 rejection
of independent claim 17, and grouped claims 1–6, 8–10, 13, 15, 16, 18–20,
22, 23, 25, and 27, which fall therewith. See Claim Grouping, supra.
REPLY BRIEF
To the extent Appellant may advance new arguments in the Reply
Brief (Reply Br. 1–6) not in response to a shift in the Examiner’s position in
the Answer, arguments raised in a Reply Brief that were not raised in the
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Appeal Brief or are not responsive to arguments raised in the Examiner’s
Answer will not be considered except for good cause (see 37 C.F.R.
§ 41.41(b)(2)), which Appellant has not shown.
CONCLUSION
Under our Revised Guidance, governed by relevant case law,
claims 1–6, 8–10, 13, 15–20, 22, 23, 25, and 27 are patent-ineligible under
35 U.S.C. § 101, and we sustain the rejection.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§ Basis Affirmed Reversed
1–6, 8–10,
13, 15–20,
22, 23, 25, 27
101
Subject
Matter
Eligibility
1–6, 8–10,
13, 15–20,
22, 23, 25, 27

FINALITY AND RESPONSE
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