Ex Parte Creamer et al

Patent Trial and Appeal Board

Jul 26, 2018

13837945 (P.T.A.B. Jul. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/837,945 03/15/2013
25096 7590 07/30/2018
PERKINS COIE LLP - SEA General
PATENT-SEA
P.O. BOX 1247
SEATTLE, WA 98111-1247
UNITED ST A TES OF AMERICA
FIRST NAMED INVENTOR
Robert S. Creamer
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
l 156478002US 9925
EXAMINER
ALLADIN, AMBREEN A
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
07/30/2018 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):
patentprocurement@perkinscoie.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT S. CREAMER, EDWARD PAUL KRAUSS,
GEOFFREY R. MYERS JR., and FRANK BRUEN
Appeal2017-004577
Application 13/83 7,945
Technology Center 3600
Before ST. JOHN COURTENAY III, LARRY HUME, and
JOYCE CRAIG, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20, which are all the claims pending in this application. We have
jurisdiction over the pending claims under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Introduction
Exemplary embodiments of Appellants' invention relate to "providing
perspective to market data." Abstract.
Appeal2017-004577
Application 13/837,945
Representative Claim
1. A computer-implemented method performed at a
computing device for displaying market information, the
computer-implemented method comprising,
receiving aggregated data for market information, at the
computing device, to facilitate a trade for a user,
wherein the aggregated data includes multiple orders that
have been submitted to a market, entered into an order book of
the market, and are open in the market at the time of receiving
the data at the computing device,
wherein each order of the multiple orders has:
a bid or offer quantity, and
a respective price for the bid or offer quantity;
determining, at the computing device, a total number of
orders at each respective price;
determining, at the computing device, a total quantity of
items bid or offered at each respective price;
disaggregating the aggregated market data by
identifying, using an order estimation algorithm running on the
computing device, groups of orders within the multiple orders
in the aggregated data,
wherein the order estimation algorithm identifies groups
of orders based at least on changes over time within the
aggregated data to:
a bid or offer quantity within the multiple orders,
a quantity of orders within the multiple orders, and
a time when each of the multiple orders was entered; and
for at least one respective price, displaying on a display of the
computing device multiple graphical representations of each of
the identified groups of orders having a bid or offer at that
respective price generated by disaggregating the aggregated
market data,
wherein the multiple graphical representations for each of
the identified groups of orders generated by disaggregating the
aggregated market data is sized in proportion to a total number
of orders at the at least one respective price, or is differentiated
from a quantity of orders associated with other groups of
orders.
2
Appeal2017-004577
Application 13/837,945
(Emphasis added regarding contested limitations).
References and Rejections
A. Claims 19 and 20 are rejected under 35 U.S.C. § 112, 6th paragraph, as
reciting a means-plus-function limitation without corresponding
written description support. Final Act. 2.
B. Claims 1-20 are rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter. Final Act. 3.
C. Claims 1-20 are rejected under 35 U.S.C. § I03(a) as being obvious
over the combined teachings and suggestions of West (US
2010/0318458 Al; Dec. 16, 2010) and Friesen et al. (US
2010/0235273 Al; Sept. 16, 2010) ("Friesen"). Final Act. 5.
Issues on Appeal
Did the Examiner err in rejecting claims 19 and 20 under
35 U.S.C. § 112, 6th paragraph?
Did the Examiner err in rejecting claims 1-20 under 35 U.S.C. § 101
as being directed to patent-ineligible subject matter?
Did the Examiner err in rejecting claims 1-20 under 35 U.S.C.
§ I03(a) as being obvious over the cited combination of references?
ANALYSIS
We have considered all of Appellants' arguments and any evidence
presented. To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 4I.37(c)(l)(iv). We highlight and address specific findings
and arguments for emphasis in our analysis below.
3
Appeal2017-004577
Application 13/837,945
Rejection A of Claims 19 and 20 under 35 US. C. § 112, 6th paragraph
With respect to claims 19 and 20, the Examiner finds "the written
description fails to disclose the corresponding structure, material, or acts for
the claimed function." Final Act. 2. In the Answer, the Examiner responds
to Appellants' arguments, and states that the "112, 6th paragraph rejection of
[c]laim[] 19 and dependent [c]laim 20 [is] maintained." Ans. 29.
We proforma reverse the Examiner's Rejection A, because the
Examiner has not made the appropriate rejection for the Examiner's stated
reasoning. See Final Act. 2; Ans. 29.
Our reviewing court provides applicable guidance: "If there is no
structure in the specification corresponding to the means-plus-function
limitation in the claims, the claim will be found invalid as
indefinite." Biomedino, LLC v. Waters Techs. Corp., 490 F.3d 946, 950
(Fed. Cir. 2007).
Applying this reasoning here, we conclude the Examiner should have
considered a rejection under pre-AIA 35 U.S.C. § 112, second paragraph,
and not under§ 112, sixth paragraph, or under§ 112, first paragraph (written
description). 1
MPEP § 2181 (II) provides additional guidance:
35 U.S.C. § 112(±) or pre-AIA 35 U.S.C. § 112, sixth paragraph
states that a claim limitation expressed in means- ( or step-)
plus-function language "shall be construed to cover the
corresponding structure ... described in the specification and
equivalents thereof." "If one employs means plus function
language in a claim, one must set forth in the specification an
1 Although the Board is authorized to reject claims under 37 C.F.R.
§ 4I.50(b), no inference should be drawn when the Board elects not to do so.
See Manual of Patent Examining Procedure (MPEP) § 1213.02.
4
Appeal2017-004577
Application 13/837,945
adequate disclosure showing what is meant by that language. If
an applicant fails to set forth an adequate disclosure, the
applicant has in effect failed to particularly point out and
distinctly claim the invention as required by the 35 U.S.C.
112(b) [or the second paragraph ofpre-AIA section 112 ]." In
re Donaldson Co., 16 F.3d 1189, 1195 (Fed. Cir. 1994) (en
bane) ( emphasis added). 2
Accordingly, we are constrained on this record to reverse the
Examiner's rejection A of claims 19 and 20 under 35 U.S.C. § 112, sixth
paragraph, or under 35 U.S.C. § 112, first paragraph, written description.
The Examiner's Rejection B of Claims 1-20 under 35 USC§ 101
Mayo/Alice Analysis under 35 USC§ 101
Under 35 U.S.C. § 101, a patent may be obtained for "any new and
useful process, machine, manufacture, or composition of matter, or any new
and useful improvement thereof." The Supreme Court has "long held that
this provision contains an important implicit exception: Laws of nature,
2 "Structure disclosed in the specification qualifies as 'corresponding
structure' if the intrinsic evidence clearly links or associates that structure to
the function recited in the claim." Williamson v. Citrix Online, LLC, 792
F.3d 1339, 1352 (Fed. Cir. 2015) (en bane) (citing B. Braun Med., Inc. v.
Abbott Labs., 124 F.3d 1419, 1424 (Fed. Cir. 1997)). For a computer-
implemented claim limitation interpreted under§ 112, sixth paragraph, the
corresponding structure must include the algorithm needed to transform the
general purpose computer or processor disclosed in the specification into the
special purpose computer programmed to perform the disclosed algorithm.
Aristocrat Techs. Australia Pty Ltd. v. Int'! Game Tech., 521 F.3d 1328,
1333 (Fed. Cir. 2008); see also Function Media, L.L.C v. Google, Inc., 708
F.3d 1310, 1318 (Fed. Cir. 2013). "[T]he fact that one of skill in the art
could program a computer to perform the recited functions cannot create
structure where none otherwise is disclosed." Williamson, F.3d at 1351
(citing Function Media, 708 F.3d at 1319).
5
Appeal2017-004577
Application 13/837,945
natural phenomena, and abstract ideas are not patentable." Alice Corp. Pty.
Ltd. v. CLSBankint'l, 134 S. Ct. 2347, 2354 (2014) (quotingAss'nfor
Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107, 2116
(2013) ). The Supreme Court in Alice reiterated the two-step framework
previously set forth in Mayo Collaborative Services v. Prometheus
Laboratories, Inc., 566 U.S. 66, 82-84 (2012), "for distinguishing patents
that claim laws of nature, natural phenomena, and abstract ideas from those
that claim patent-eligible applications of those concepts." Alice, 134 S. Ct.
at 2355.
The first step in that analysis is to determine whether the claims at
issue are directed to one of those patent-ineligible concepts, such as an
abstract idea. Abstract ideas may include, but are not limited to,
fundamental economic practices, methods of organizing human activities, an
idea of itself, and mathematical formulas or relationships. Id. at 2355-57.
If the claims are not directed to a patent-ineligible concept, the inquiry
ends. See Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1262 (Fed.
Cir. 2017).
Otherwise, the inquiry proceeds to the second step in which the
elements of the claims are considered "individually and 'as an ordered
combination' to determine whether the additional elements 'transform the
nature of the claim' into a patent-eligible application." Alice, 134 S. Ct. at
2355 (quoting Mayo, 566 U.S. at 79, 78). We consider the question of
whether the claims are directed to a specific improvement in the capabilities
of the computing devices, or, instead, "a process that qualifies as an 'abstract
idea' for which computers are invoked merely as a tool." Enfzsh, LLC v.
Microsoft Corp., 822 F.3d 1327, 1336 (Fed. Cir. 2016).
6
Appeal2017-004577
Application 13/837,945
We, therefore, decide under step two whether the claims: (a) set forth
an inventive concept that provides a specific means or method that improves
the relevant technology, or (b) are directed to a result or effect that itself is
the abstract idea, in which the claims merely invoke generic processes and
machinery. See Enfzsh, 822 F.3d at 1336.
Regarding the first step of the Alice/Mayo analysis, the Examiner
concludes claims 1-20 are directed to an abstract idea: 3
The claims( s) are directed to the abstract idea of displaying
market information. Performance of such activities is a
fundamental economic practice and thus, the claims include an
abstract idea.
Final Act. 4.
Regarding the second step of the Mayol Alice analysis, the Examiner
concludes the claims do not include additional elements that are sufficient to
amount to significantly more than the judicial exception,
The additional element(s) or combination of elements in the
claim( s) other than the abstract idea per se amount( s) to no
more than: (i) mere instructions to implement the idea on a
computer or electronic device, and/or (ii) recitation of generic
computer structure that serves to perform generic computer
functions that are well-understood, routine and conventional
activities previously known to the pertinent industry. Viewed as
a whole, these additional claim element( s) do not provide
meaningful limitation( s) to transform the abstract idea into a
patent eligible application of the abstract idea such that the
claim(s) amount to significantly more than the abstract idea
itself.
3 "Patent eligibility under§ 101 presents an issue of law." Accenture Glob.
Servs.,GmbH v. Guidewire Software, Inc., 728 F.3d 1336, 1340 (Fed.
Cir. 2013).
7
Appeal2017-004577
Application 13/837,945
Final Act. 4, emphasis added. 4
For the aforementioned reasons, the Examiner concludes that all
claims 1-20 on appeal are not patent-eligible under 35 U.S.C. § 101.
Mayo/Alice Analysis - Step 1
Regarding Alice Step 1, Appellants contend, inter alia:
This very particularized claim scope is not an abstract
fundamental economic practice on par, e.g., with "intermediated
settlement," "hedging, or protecting against risk," "adjust alarm
limits for certain operating conditions," or "the conversion of
binary numbers" with which the Supreme Court was concerned
in, e.g., Alice, Bilski, Flook, and Benson, respectively. Alice
Corporation v. CLS Bank International, 573 U.S._, 134 S. Ct.
2347, 2350 (2014) ("Alice Corp."). In each of those cases, the
claim scope was so broad that it would effectively "cover both
known and unknown uses," effectively preempting application
anywhere in the art.
App. Br. 30.
We note Appellants' independent claim 1 is directed to, inter alia:
displaying market information by receiving aggregated data, determining a
total number of orders and total quantity of items bid or offered at each
respective price, disaggregating the aggregated market data, and displaying
multiple graphical representations of identified groups of orders. Remaining
independent claims 10, 14, 18, and 19 recite similar language of
commensurate scope.
4 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).
8
Appeal2017-004577
Application 13/837,945
Our reviewing court guides that claimed fundamental economic and
conventional business practices are often abstract ideas, even if performed
on a computer. See, e.g., OIP Techs. Inc. v. Amazon.com, Inc., 788 F.3d
1359, 1362-63 (Fed. Cir. 2015); Credit Acceptance Corp. v. Westlake Servs.,
859 F.3d 1044, 1054 (Fed. Cir. 2017) ("Each of the claims is directed to the
abstract idea of processing an application for financing a purchase.").
Thus, under a broad but reasonable interpretation, we conclude each
of Appellants' claims on appeal is directed to an economic or business
practice, i.e., to the result of displaying "multiple graphical representations
of ... identified groups of orders." Claim 1. However, our reviewing court
guides "[t]he abstract idea exception prevents patenting a result where 'it
matters not by what process or machinery the result is accomplished."'
McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1312 (Fed.
Cir. 2016) (quoting O'Reilly v. Morse, 56 U.S. 62, 113 (1854)) (emphasis
added).
This guidance is applicable here. Therefore, on this record, we are not
persuaded of error regarding the Examiner's legal conclusion that all claims
on appeal are directed to the abstract idea of a "fundamental economic
practice." Final Act. 4.
Mayo/Alice Analysis-Step 2
Because we conclude the claims are directed to an abstract idea for
essentially the same reasons articulated by the Examiner (Final Act. 3--4;
Ans. 29--46), we tum to the second part of the Alice/Mayo analysis. We
analyze the claims to determine if there are additional limitations that
individually, or as an ordered combination, ensure the claims amount to
"significantly more" than the abstract idea. Alice, 134 S. Ct. at 2357.
9
Appeal2017-004577
Application 13/837,945
Regarding Alice Step 2, Appellants address the purported inventive
concept of the claims:
The claims clearly provide improvements to a technology field,
such as the functioning of trading platforms and data
visualization tools. In fact, an inventive concept described in
detail in the application -- the visualization techniques -- are
fundamentally different and require different operations than
those that have been traditionally used. For example, no trading
platform or data visualization tool has previously provided a
tool that preformed the specific operation to disaggregate the
aggregated market data by "identifying, using an order
estimation algorithm running on the computing device, groups
of orders within the multiple orders in the aggregated data"
and/or displayed "on a display of the computing device multiple
graphical representations of each of the identified groups of
orders having a bid or offer at that respective price generated by
disaggregating the aggregated market data." These are clear,
tangible improvements to the current technology.
App. Br. 33.
Appellants' arguments do not persuade us the Examiner erred,
because Appellants do not explain how the functioning of the claimed
"computing device" is improved. See Claim 1. The Examiner points to
Appellants' Specification as evidence, and notes that "the input devices and
data storage devices may be any of a variety of devices and that various
computing devices are capable of implementing various features of the
software and/or hardware facilities. (See Applicant Specification paragraph
28, 42 and Figure[s] 3-9)." Ans. 34; see also Ans. 33, citing Spec. Fig. 1,
,r,r 25-27.
Appellants' arguments are further unavailing, because neither the
algorithm nor the recited processing improve the actual processor. The
Examiner additionally notes:
10
Appeal2017-004577
Application 13/837,945
The order estimation algorithm is disclosed to be
programmatically configured (e.g., using Boolean logic) to
disaggregate and display orders based on the available ( e.g.,
type/quality) of information in the market data. (See Appellant
Specification paragraph 3 6) [.] Additional market data provided
by the provider improves the order estimation algorithm. (See
Appellant Specification paragraph 36). This is not an
improvement to technology as the technology remains the same
( displaying orders based on available information in the market
data) and the data is still processed on a processor. The data
may in some instances be displayed in a different way but the
data itself is not improved, nor is the process of processing the
data.
Ans. 39 ( emphasis added).
In particular, we find the steps (or functions) of Appellant's claims are
merely performed using generic computer processing hardware: "a
computing device," and "a display of the computing device." Claim 1. See
also independent claim 14: "a processor" and "a display, coupled to the
processor."
Our reviewing court has "repeatedly held that such invocations of
computers and networks that are not even arguably inventive are
'insufficient to pass the test of an inventive concept in the application' of an
abstract idea." Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355
(Fed. Cir. 2016) (internal citations omitted); see also Intellectual Ventures I
LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1341 (Fed. Cir. 2017)
("Rather, the claims recite both a generic computer element-a processor-
and a series of generic computer 'components' that merely restate their
individual functions .... That is to say, they merely describe the functions
of the abstract idea itself.").
11
Appeal2017-004577
Application 13/837,945
Because none of Appellant's claims on appeal is directed to an
improvement in a processor, database, or other computer/network
component, we find none of the claim limitations, viewed "both individually
and as an ordered combination," amounts to significantly more than the
judicial exception in order to sufficiently transform the nature of the claims
into patent-eligible subject matter. See Alice, 134 S. Ct. at 2355 (internal
quotations omitted) (quoting Mayo, 566 U.S. at 79).
Applying the aforementioned guidance from our reviewing courts to
the claims before us on appeal, we conclude, in our Mayo/Alice analysis, that
each of Appellant's claims 1-20, considered as a whole, is directed to (under
step one), a patent-ineligible abstract idea, and under step two, does not
recite something "significantly more" to transform the nature of the claim
into a patent-eligible application.
Therefore, we conclude the additional elements recited in the claims
of generic computer hardware do not provide an inventive concept, without
more. Accordingly, for at least the reasons discussed above, we sustain the
Examiner's Rejection B under 35 U.S.C. § 101 of claims 1-20, as being
directed to patent-ineligible subject matter in light of Alice and its progeny. 5
The Examiner's Rejection C of Claims 1-20 under§ 103(a)
Based upon Appellants' arguments, we decide the appeal of Rejection
C under§ 103(a) of grouped claims 1---6, 9, 10, 12-15, and 17-20 on the
basis of representative independent claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
5 To the extent Appellants have not advanced separate, substantive
arguments for particular claims, or other issues, such arguments are waived.
See 37 C.F.R. § 4I.37(c)(l)(iv).
12
Appeal2017-004577
Application 13/837,945
We address§ 103(a) Rejection C of dependent claims 7, 8, 11, and 16, infra.
Based upon our review of the record, we disagree with Appellants'
arguments, and agree with and adopt the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness for representative
independent claim 1. Specifically, we agree with and adopt the reasons,
rationales, and explanations articulated by the Examiner: (i) in the Final
Action (5-25) from which this appeal is taken, and, (ii) as set forth in the
Examiner's responsive explanations in the Answer (47-53). 6
Regarding representative claim 1, Appellants note:
The Examiner points to paragraphs [0008]-[0009] and [0033]
and Fig. 2A of West as teaching "disaggregating the
aggregated market data by identifying, using an order
estimation algorithm running on the computing device,
groups of orders within the multiple orders in the aggregated
data .... " However, these portion of West fails to teach any
type of identification of groups of orders as recited by the
claim.
App. Br. 41.
Appellants, in particular, contend:
claim 1 is clear that the aggregated data "includes multiple
orders that have been submitted to a market, entered into an
order book of the market, and are open in the market at the time
of receiving the data at the computing device." In contrast, this
portion of West is not identifying groups of orders in the
aggregated data as recited by claim 1.
App. Br. 42.
6 To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F.R. § 41.41(b)(2).
13
Appeal2017-004577
Application 13/837,945
urge:
Regarding the disputed claim 1 term "disaggregating", Appellants
The aggregated volume of all executed trades at a single price
as discussed consistently throughout West is the opposite of
disaggregating aggregated market data by identifying groups of
orders and " ... displaying multiple graphical representations of
each of the identified groups of orders having a bid or offer at
that respective price" as recited by claim 1.
App. Br. 44.
We are not persuaded by Appellants' arguments, because the
Examiner has applied a broad claim interpretation that is consistent with
Appellants' Specification. 7 We agree with the Examiner's broad but
reasonable interpretation, in light of Appellants' Specification, that
"disaggregating" is no more than processing data to emphasize different
pieces of market data. See Ans. 37-38, citing Spec. Fig. 2, ,r,r 15, 30,
and 33-35. 8
In particular, see Spec. ,r 30:
At step 204, aggregated market data is disaggregated into one
or more groups of orders, based on various characteristics ( e.g.,
the overall quantity of orders placed at a given time) detected in
the market data. At step 206, disaggregated groups are
displayed using one or more of the above-mentioned variety of
emphasis techniques.
7 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997).
8 See Claim 1: "disaggregating the aggregated market data by identifying,
using an order estimation algorithm running on the computing device,
groups of orders within the multiple orders in the aggregated data"
( emphasis added).
14
Appeal2017-004577
Application 13/837,945
Therefore, on this record, we are not persuaded the Examiner's claim
interpretation is overly broad, unreasonable, or inconsistent with the
Specification. 9
Turning to the evidence, we find: (1) West's trading application that
determines the traded volume for each price level, and (2) West's
description of providing periodic updates corresponding to an aggregate
traded quantity for the last traded price level, teach or suggest the disputed
limitation of identifying groups of orders, within the meaning of claim 1.
See West ,r 33.
l\1oreover, we find the combination of the cited features of \,Vest and
Friesen would have merely produced a predictable result. s~ee KS'R Int 'l Co.
v. Teleflex Inc., 550 U.S. 398,401 (2007) ("[A] combination of farniliar
elernents according to known methods is likely to be obvious when it does
no more than yield predictable results.").
Therefore, when West is modified by Friesen in the manner proffered
by the Examiner (Final Act. 5-8), on this record, we find a preponderance of
the evidence supports the Examiner's findings that the contested limitations
are taught, or at least suggested, by the Examiner's proposed modification. 10
9 Because "applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfain1ess to the applicant or
patentee." In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (internal citation omitted).
10 Our reviewing court guides: "'the question under 35 USC 103 is not
merely what the references expressly teach but what they would have
suggested to one of ordinary skill in the art at the time the invention was
made."' Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989) ( quoting In re Lamberti, 545 F .2d 7 4 7, 7 50 ( CCP A 197 6)) ( emphasis
added); see also MPEP § 2123.
15
Appeal2017-004577
Application 13/837,945
Accordingly, we sustain the Examiner's§ 103(a) Rejection C of
representative independent claim 1, and of the additional grouped claims
2---6, 9, 10, 12-15, and 17-20, also rejected under Rejection C, which are
not argued separately. App. Br. 45. See 37 C.F.R. § 4I.37(c)(l)(iv).
Rejection C of Claim 7
Regarding dependent claim 7, Appellants argue:
[ A ]rranging and displaying market information and using
interactive screens to enter and execute orders is not the same
as "identifying a trading pattern based on a multiple other
groups of orders placed in a multiple prices, wherein a trade is
configured to initiate based on a selection of a graphical
representation of one or more of the other groups of orders" as
recited by claim 7.
App. Br. 45.
Appellants further urge that allowing a trader to select a quantity and
value before submitting an order, as taught in West, is not the same as
"identifying a trading pattern based on a multiple other groups of orders
placed in a multiple prices, wherein a trade is configured to initiate based on
a selection of a graphical representation of one or more of the other groups
of orders" as recited by claim 7. App. Br. 46.
We conclude the Examiner's broad but reasonable interpretation of
claim term "trading pattern" only requires some identification of a pattern
related to trading based on orders placed in a multiple of prices. Ans. 48.
Therefore, we agree with the Examiner's broad but reasonable claim
interpretation, consistent with Appellants' Specification. 11
11 See ICON Health and Fitness, Inc., 496 F.3d at 1379.
16
Appeal2017-004577
Application 13/837,945
Moreover, the Examiner notes that Appellants' own admissions
regarding West ,r,r 42--49 (App. Br. 45--47) show West teaches a selection of
a graphical representation of a desired quantity level/group. Ans. 49. The
Examiner further finds West's descriptions of providing various market
information at different price levels, and displaying different data types,
teach, or at least suggest, the disputed limitation of dependent claim 7. Id.,
citing West, ,r,r 30-32.
We agree with the Examiner's findings, because West's descriptions
of "traded volume at a number of price levels" (i-f 30), and displaying
different types of trading data (i1i129--32), teach or at least suggest
"identifying a trading pattern based on a multiple other groups of orders
placed in a multiple prices, wherein a trade is configured to initiate based on
a selection of a graphical representation of one or more of the other groups
of orders," as recited in claim 7.
Because the Examiner's findings regarding the argued features of
claim 7 are supported by a preponderance of the evidence, we sustain the
Examiner's§ 103(a) Rejection C of dependent claim 7.
Rejection C of Claims 8, 11 and 16
Regarding claim 8, Appellants argue that neither the Examiner nor the
cited reference discuss or disclose "a trading algorithm." App. Br. 47--48.
The Examiner points to the support in Appellants' Specification for
the disputed term "trading algorithm," in which the Specification describes
the algorithm may be no more than a basic buy/sell order algorithm. Ans.
50. See Spec. Fig. 8, ,r,r 18-20, 40.
17
Appeal2017-004577
Application 13/837,945
Given the context provided in Appellants' Specification (id.), we are
not persuaded the Examiner erred in finding the combination ofFreisen's
trading orders and West's trader who uses interface 500 to submit orders to
an exchange (e.g., the CME or Eurex), teaches or at least suggests the
"trading algorithm" recited in dependent claim 8. Ans. 50-52.
Because the Examiner's findings regarding the argued claim 8
features are supported by a preponderance of the evidence, we sustain the
Examiner's§ 103(a) Rejection C of dependent claim 8.
For similar reasons, the Examiner's underlying factual findings and
ultimate legal conclusion of obviousness regarding rejected claims 11 and 16
are supported by a preponderance of the evidence. See Final Act. 21 ( claim
11); Final Act. 23-24 (claim 16). Accordingly, we sustain the Examiner's
§ 103(a) Rejection C of dependent claims 11 and 16.
Because Appellants do not advance separate, substantive arguments
for the remaining rejected claims on appeal, such arguments are waived. See
37 C.F.R. § 4I.37(c)(l)(iv).
CONCLUSIONS
The Examiner erred in rejecting claims 19 and 20 under 35 U.S.C.
§ 112, 6th paragraph.
The Examiner did not err in rejecting claims 1-20, under 35 U.S.C.
§ 101, as being directed to patent-ineligible subject matter.
The Examiner did not err in rejecting claims 1-20, under pre-AIA
35 U.S.C. § 103(a), as being obvious over the combined teachings and
suggestions of the cited references.
18
Appeal2017-004577
Application 13/837,945
DECISION
We reverse the Examiner's decision rejecting claims 19 and 20 under
35 U.S.C. § 112, 6th paragraph.
We affirm the Examiner's decision rejecting claims 1-20 under
35 U.S.C. § 101.
We affirm the Examiner's decision rejecting claims 1-20 under pre-
AIA 35 U.S.C. § 103(a).
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner's decision is affirmed. See
37 C.F.R. §4I.50(a)(l).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
19