Ex Parte Jha et al

Patent Trial and Appeal Board

Feb 15, 2019

13711390 (P.T.A.B. Feb. 15, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/711,390 12/11/2012
12684 7590 02/20/2019
Lempia Summerfield Katz LLC/CME
20 South Clark Street
Suite 600
Chicago, IL 60603
FIRST NAMED INVENTOR
Udesh Jha
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.
4672-12015AUS 1743
EXAMINER
RANKINS, WILLIAM E
ART UNIT PAPER NUMBER
3694
NOTIFICATION DATE DELIVERY MODE
02/20/2019 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):
mail@lsk-iplaw.com
docket-us@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 UDESH JHA, SASHA ROZENBERG, ZIYI WANG,
and JALPAN SHAH
Appeal2017-010500 1
Application 13/711,3902
Technology Center 3600
Before MURRIEL E. CRAWFORD, NINA L. MEDLOCK, and
AMEE A. SHAH, Administrative Patent Judges.
MEDLOCK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-5, 7-20, and 22-32. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 Our decision references Appellants' Appeal Brief ("App. Br.," filed
April 19, 2017) and Reply Brief ("Reply Br.," filed August 4, 2017), and the
Examiner's Answer ("Ans.," mailed June 6, 2017) and Final Office Action
("Final Act.," mailed November 23, 2016).
2 Appellants identify Chicago Mercantile Exchange Inc. as the real party in
interest. App. Br. 2.
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Application 13/711,390
CLAIMED INVENTION
Appellants' claimed invention "relate[ s] to minimization of risk of
loss, and thereby minimization of margin and/ or guarantee fund
requirements, for a portfolio of interest rate swap ("IRS") positions held by a
market participant" (Spec. ,r 18).
Claims 1, 16, 31, and 32 are the independent claims on appeal.
Claim 1, reproduced below with bracketed notations added, is illustrative of
the claimed subject matter:
1. A computer implemented method of minimizing
risk of loss for a portfolio held by a market participant, the
portfolio comprising a plurality of interest rate swap ("IRS")
positions, the method comprising:
[(a)] identifying, automatically by a processor for
portfolio data accessible via an exchange computer system
coupled with the processor and representative of each of one or
more of the plurality of IRS positions, portfolio data
representative of a counter-position in another portfolio
accessible via the exchange computer system, which is not
accessible to the market participant, held by another market
participant for a proposed trade therewith wherein execution of
the proposed trade would result in a reduction of the risk of loss
of the portfolio;
[ (b)] providing, by the processor, data representative of
each of the identified proposed trades to the market participant
for acceptance;
[( c )] receiving, by the processor, input representative of
acceptance of the one or more proposed trades from the market
participant and, based thereon, causing the one or more proposed
trades to be executed to modify the portfolio data representative
of at least one of the IRS positions in the portfolio, wherein the
risk of loss for the portfolio is reduced thereby.
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REJECTIONS
Claims 1-5, 7-20, and 22-32 are rejected under 35 U.S.C. § 101 as
directed to non-statutory subject matter.
Claims 1-5, 7-20, and 22-32 are rejected under 35 U.S.C. § 112(a) as
failing to comply with the written description requirement. 3
ANALYSIS
Patent-Ineligible Subject Matter
Appellants argue the pending claims as a group (App. Br. 7-14). We
select independent claim 1 as representative. The remaining claims stand or
fall with claim 1. See 37 C.F.R. §4I.37(c)(l)(iv).
Under 35 U.S.C. § 101, an invention is patent-eligible if it claims a
"new and useful process, machine, manufacture, or composition of matter."
35 U.S.C. § 101. The Supreme Court, however, has long interpreted§ 101
to include an implicit exception: "[l]aws of nature, natural phenomena, and
abstract ideas" are not patentable. Alice Corp. v. CLS Bank Int 'l, 573 U.S.
208,216 (2014).
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 (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 Corp., 573 U.S. at 217.
The first step in that analysis is to "determine whether the claims at issue are
3 The written description requirement was entered as "new grounds of
rejection" in the Answer. Ans. 8. We treat, as inadvertent error, the
Examiner's inclusion there of canceled claims 6 and 21 among the rejected
claims.
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directed to one of those patent-ineligible concepts." Id. If the claims are not
directed to a patent-ineligible concept, e.g., an abstract idea, the inquiry
ends. Otherwise, the inquiry proceeds to the second step where the elements
of the claims are considered "individually and 'as an ordered combination"'
to determine whether there are additional elements that "'transform the
nature of the claim' into a patent-eligible application." Id. (quoting Mayo,
566 U.S. at 79, 78).
The Court acknowledged in Mayo, that "all inventions at some level
embody, use, reflect, rest upon, or apply laws of nature, natural phenomena,
or abstract ideas." Mayo, 566 U.S. at 71. Therefore, the Federal Circuit has
instructed that claims are to be considered in their entirety to determine
"whether their character as a whole is directed to excluded subject matter."
McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d 1299, 1312
(Fed. Cir. 2016) (quoting Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015)).
Here, in rejecting the pending claims under 35 U.S.C. § 101, the
Examiner determined that the claims are directed to "providing proposed
trades while minimizing risk of loss," which the Examiner determined is a
fundamental economic practice and, therefore, an abstract idea (Final
Act. 7). The Examiner also determined that the claims do not include
limitations that amount to "significantly more" than the abstract idea itself
"because the claims do not include an improvement to another technology or
technical field, an improvement to the functioning of the computer itself, or
meaningful limitations beyond generally linking the use of an abstract idea
to a particular technological environment" (id. at 7-8).
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We are not persuaded, as an initial matter, by Appellants' argument
that the Examiner erred in determining that claim 1 is directed to an abstract
idea (App. Br. 7). The Federal Circuit has explained that "the 'directed to'
inquiry applies a stage-one filter to claims, considered in light of the
[S]pecification, based on whether 'their character as a whole is directed to
excluded subject matter."' Enfzsh, LLC v. Microsoft Corp., 822 F.3d 1327,
1335 (Fed. Cir. 2016) (quoting Internet Patents Corp., 790 F.3d at 1346). It
asks whether the focus of the claims is on a specific improvement in relevant
technology or on a process that itself qualifies as an "abstract idea" for
which computers are invoked merely as a tool. See id. at 1335-36. Here,
the Specification, including the claim language, make clear that the claims
focus on an abstract idea, and not on any improvement to computer
technology and/or functionality.
The Specification is titled "INTEREST RA TE SW AP RISK
COMPRESSION." The Background section of the Specification describes
that in a typical futures trading environment, the standardization of futures
contracts and the nature of the central counterparty based trading system
allow a futures exchange or a market participant to net together offsetting
positions in the same contract for the purpose of reducing the margin
requirement to reflect the reduced risk of loss of such positions (Spec. ,r 6).
The Specification describes that, in the case of interest rate swap ("IRS")
contracts, however, the variability in the characteristics of positions that may
exist in any given portfolio makes it difficult to identify suitable positions
for netting, and that this process is further complicated by the bilateral nature
of an IRS contract where a particular position of one party is coupled with a
counter position of a counter-party (id. ,r 7). "In addition, the nature of an
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IRS contract," e.g., that it is based on a floating interest rate, "complicates
the assessment of the risk of loss, and the corresponding margin
requirement, further complicates identification of transactions which may
reduce the risk of loss, and thereby, the margin requirement" (id.). The
claimed invention is ostensibly intended to provide an improved method for
minimizing risk of loss for a portfolio comprising a plurality of IRS
positions by identifying, for each of the IRS positions in the portfolio, a
counter-position in another portfolio held by another market participant for a
proposed trade, and not accessible by the market participant, where
execution of the proposed trade will result in a reduction of the risk of loss
of the portfolio (id. ,r 18).
Understood in light of the Specification, claim 1 is, thus, directed to
( 1) identifying proposed trades that will result in a reduction in the risk of
loss for a portfolio that comprises IRS positions (step (a)); (2) presenting
these trades to a market participant for acceptance (step (b )); and
(3) executing the accepted trades (step (c)). Put simply, claim 1 is directed
to identifying and executing trades to minimize the risk of loss for a
portfolio of IRS positions - in other words, to a fundamental economic
practice, which is a method of organizing human activity and, therefore, an
abstract idea.
In this regard, claim 1 is substantially similar to the claims in Bilski v.
Kappas, 561 U.S. 593, 611 (2010), which the Court determined were
directed to a fundamental economic practice, and, therefore, to an
unpatentable abstract idea. Similar to pending claim 1 at issue here, claim 1
in Bilski was directed to a method for hedging against the financial risk of
price fluctuations, and recited a series of steps for hedging risk, including:
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( 1) "initiating a series of transactions between [a] commodity provider and
consumers of [a] commodity"; (2) "identifying market participants for [the]
commodity having a counter-risk position to [the] consumers; and
(3) "initiating a series of transactions between [the] commodity provider and
[the] market participants ... such that [the] series of market participant
transactions balances the risk position of [the] series of consumer
transactions." Bilski, 651 U.S. at 599.
The Specification details, as mentioned above, the difficulties
associated with identifying suitable offsetting transactions to reduce the risk
of loss for IRS contract portfolios (Spec. ,r 7), and variously describes the
processes involved in identifying proposed trades (see, e.g., id. ,r,r 35-36).
But, we find no indication in the Specification, nor do Appellants direct us to
any indication, that the operations recited in claim 1 invoke any assertedly
inventive programming, require any specialized computer hardware or other
inventive computer components, i.e., a particular machine, or that the
claimed invention is implemented using other than generic computer
components to perform generic computer functions. See DDR Holdings,
LLC v. Hotels.com, L.P., 773 F.3d 1245, 1256 (Fed. Cir. 2014) ("[A]fter
Alice, there can remain no doubt: recitation of generic computer limitations
does not make an otherwise ineligible claim patent-eligible."). In fact, the
Specification suggests just the opposite, i.e., that the claimed invention may
be implemented using only generic computer components (see, e.g.,
Spec. ,r,r 43--45).
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing or reflects an improvement in computer technology
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and/or functionality to the claimed invention. Nor do we find anything that
otherwise indicates that the claimed invention integrates the abstract idea
into a "practical application," as that phrase is used in the USPTO's "2019
Revised Patent Subject Matter Eligibility Guidance," 84 Fed. Reg. 50, 55
(January 7, 2019). 4
Appellants maintain that even if the "claimed providing proposed
trades and minimizing risk of loss" were considered an abstract idea, the
claims do not "entirely preempt or tie-up the mere hedging of risk, provision
of trades or minimization of risk of loss" (App. Br. 7). Yet, to the extent that
Appellants maintain that the claims are patent-eligible because there is no
preemption (id. at 7-9), we note that preemption is not the sole test for
patent-eligibility. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F .3d
1371, 1379 (Fed. Cir. 2015) ("[P]reemption may signal patent ineligible
subject matter, [but] the absence of complete preemption does not
demonstrate patent eligibility.").
Appellants also misapprehend the controlling precedent to the extent
Appellants maintain that the claimed invention is patent-eligible, i.e., that
4 In accordance with the USPTO' s revised guidance, a claim will be
considered "directed to" an abstract idea if (1) the claim recites subject
matter falling within one of the following groupings of abstract ideas:
(a) mathematical concepts; (b) certain methods of organizing human
interactions, e.g., fundamental economic principles or practices, commercial
or legal interactions; and ( c) mental processes, and (2) the claim does not
integrate the abstract idea into a practical application. See Revised
Guidance, 84 Fed. Reg. at 54--55. "A claim that integrates a judicial
exception into a practical application will apply, rely on, or use the judicial
exception in a manner that imposes a meaningful limitation on the judicial
exception, such that the claim is more than a drafting effort designed to
monopolize the judicial exception." Id. at 54.
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claims do not represent routine or conventional activity previously known in
the industry, because the claims are allegedly novel and/or non-obvious in
view of the prior art (App. Br. 10 ("This is neither a routine nor conventional
activity previously known in the industry, or a generic computerization
thereof, as evidenced by the lack of prior art."); see also id. ("[T]he claimed
automated identification of proposed risk reducing trades for positions and
counter positions based on data otherwise inaccessible to the participants ...
is a specific implementation which has NOT been used before and therefore
is not well understood, routine or conventional in the art.")). Neither a
finding of novelty nor a non-obviousness determination automatically leads
to the conclusion that the claimed subject matter is patent-eligible. Although
the second step in the Mayo/Alice framework is termed a search for an
"inventive concept," the analysis is not an evaluation of novelty or non-
obviousness, but rather, a search for "an element or combination of elements
that is 'sufficient to ensure that the patent in practice amounts to
significantly more than a patent upon the [ineligible concept] itself."'
Alice Corp., 573 U.S. at217-18 (citation omitted). "Groundbreaking,
innovative, or even brilliant discovery does not by itself satisfy the § 101
inquiry." Ass 'nfor Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 591 (2013). A novel and non-obvious claim directed to a purely
abstract idea is, nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90;
see also Diamond v. Diehr, 450 U.S. 175, 188-89 (1981) ("The 'novelty' of
any element or steps in a process, or even of the process itself, is of no
relevance in determining whether the subject matter of a claim falls within
the§ 101 categories of possibly patentable subject matter.").
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Appellants argue the claims are directed to a "specific, novel and
patentable system" for selectively and automatically identifying, for
portfolio data, accessible via an exchange computer system, representative
of a given interest rate swap position held by a trader, "data, accessible via
the exchange computer system, representative of a suitable counter-position
held by another trader, which the first trader is not able to access, for a
proposed trade which would result in a reduction in the risk of loss" (App.
Br. 8). Appellants assert that, by providing a system which "efficiently
computes proposed position modifications/risk reducing transactions among
multiple users on behalf of those users who are not able to access the
requisite data and compute such transactions for themselves," the claimed
invention improves the "technical field of data and transaction processing[,]
specifically in a central party counter party based electronic trading system"
and "solves a problem created by, and unique to such a system" (id. at 9;
see also Reply Br. 10). Attempting to analogize the present claims to those
in DDR Holdings, Appellants, thus, argue that the claimed invention, like
that in DDR Holdings, is specifically rooted in technology and solves the
technical problem of "indirect cross portfolio data access and review" with a
technical solution which utilizes the claimed invention to "automatically
access and analyze multiple portfolios and subsequently disseminate
proposed transaction[ s] to each user to effect the necessary changes without
revealing one user's identity to another" (id. at 12-13).
We are not persuaded, as an initial matter, that identifying proposed
risk reducing transactions is a technical problem, as opposed to a business
problem. Nor are we persuaded that using a transaction processing system
to access and analyze multiple portfolios and subsequently disseminate
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proposed transactions to each user to effect the necessary changes without
revealing one user's identity to another, is a technical, rather than
commercial, solution where, as described above, there is no indication here
that the claimed operations, including "identifying ... portfolio data
representative of a counter-position in another portfolio accessible via the
exchange computer system, which is not accessible to the market
participant," as recited in claim 1, require any specialized computer
hardware or other inventive computer components, invoke any assertedly
inventive programming, or are implemented using other than generic
computer components to perform generic computer functions.
Appellants argue that the "specifically disclosed and claimed
combination of automated identifying of risk reducing transactions for a
participant's portfolio across portfolio data not accessible thereto" are
additional elements that provide "something more" than mere proposing of
orders or risk reduction (App. Br. 11-12). Yet, claim 1, for example, merely
recites a result (i.e., that the processor identifies portfolio data representative
of a counter-position in another portfolio accessible via the exchange
computer system, which is not accessible to the market participant), without
any technical details for achieving that result. Appellants, by their
argument, suggest such details exist, but those details are not reflected in the
claim. For example, claim 1 does not specify the mechanism by which the
processor identifies portfolio data via an exchange system, which are not
accessible to the market participant. Instead, "the claim language here
provides only a result-oriented solution with insufficient detail for how a
computer accomplishes it. Our law demands more." Intellectual Ventures I
LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1342 (Fed. Cir. 2017).
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We also are not persuaded that identifying suitable transactions
between a given market participant's position and a counter position in a
portfolio not otherwise accessible to the market participant is an additional
element to be considered when determining whether the claims include
additional elements or a combination elements that is sufficient to amount to
significantly more than the judicial exception, as opposed to being part of
the abstract idea itself, i.e., identifying and executing trades to minimize the
risk of loss for a portfolio of IRS positions. It could not be clearer from
Alice, that under step two of the Mayo/Alice framework, the elements of
each claim are considered both individually and "as an ordered
combination" to determine whether the additional elements, i.e., the
elements other than the abstract idea itself, "transform the nature of the
claim" into a patent-eligible application. Alice Corp., 573 U.S. at 217. See
Mayo, 566 U.S. at 72-73 (requiring that "a process that focuses upon the use
of a natural law also contain other elements or a combination of elements,
sometimes referred to as an 'inventive concept,' sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
natural law itself' ( emphasis added)). In other words, the inventive concept
under step two of the Mayol Alice test cannot be the abstract idea itself:
It is clear from Mayo that the "inventive concept" cannot
be the abstract idea itself, and Berkheimer ... leave[ s]
untouched the numerous cases from this court which
have held claims ineligible because the only alleged
"inventive concept" is the abstract idea.
Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018) (Moore, J.,
concurring). See also 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
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the inventive concept that renders the invention 'significantly more' than
that ineligible concept.").
The Examiner determined here that claim 1 "includes the additional
limitations of providing the data to the market participant for acceptance,
receiving acceptance, and causing the trade to be executed," i.e., steps (b)
and ( c ), as recited in claim 1, and that "[ t ]hese limitations are considered
insignificant post-solution activity that is well-understood, routine and
conventional" (Final Act. 8). Appellants cannot reasonably contend, nor do
they, that there is a genuine issue of material fact regarding whether these
steps are well-understood, routine, or conventional.
Citing Trading Technologies Int 'l, Inc. v. CQG, Inc., 675 F. App'x
1001 (Fed. Cir. 2017) in their Reply Brief, Appellants assert that, as in
Trading Technologies, the claimed invention is directed to "a specific
improvement to the way computers operate:
As in Trading Technologies Int'!, Inc. v. CQG, Inc., the presently
claimed invention is directed to a specific improvement to the
way computers operate as the claimed system and method for
hybrid cross margining are directed to a specific implementation
of a solution to a problem in the software arts, providing a system
for selectively and automatically identifying, for portfolio data
accessible via an exchange computer system representative of a
given interest rate swap position held by a trader, data accessible
via the exchange computer system representative of a suitable
counter-position held by another trader, which the first trader is
not able to access, for a proposed trade which would result in a
reduction in the risk of loss for the trader, thereby improving the
efficiency of the trading system allowing for the netting or
otherwise, removal, of position data representing offset
positions. See, e.g., Appellants' Specification, paras. 7 and 19--
23.
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Reply Br. 12-13. But, we fail to see how, and Appellants do not adequately
explain how identifying, for portfolio data representative of an interest rate
swap position held by a trader, data representative of a counter-position held
by another trader, which the first trader is not able to access, somehow
improves the way the computer operates.
We also fail to see, and Appellants do not explain, how Trading
Technologies impacts the patent-eligibility of the present claims. There, the
Federal Circuit affirmed the district court's holding that the patented claims
( which recited a method and system for displaying market information on a
graphical user interface) were not directed to an abstract idea because the
district court found, and the Federal Circuit agreed, that the challenged
patents did not simply claim displaying information on a graphical user
interface; instead, the claims required "a specific, structured graphical user
interface paired with a prescribed functionality directly related to the
graphical user interface's structure that is addressed to and resolves a
specifically identified problem in the prior state of the art." Id. at 1004.5 No
graphical user interface improvement is involved here.
5 Specifically, the district court found that with prior art GUis, the best bid
and best ask prices changed based on updates received from the market;
therefore, there was a risk with these GUis that a trader would miss her
intended price as a result of prices changing from under her pointer at the
time she clicked on the price cell on the GUI. The patents-in-suit provided a
system and method whereby traders could place orders at a particular,
identified price level, not necessarily the highest bid or the lowest ask price
by keeping the prices static in position, and allowing the quantities at each
price to change. Trading Techs. Int'!, Inc. v. CQG, Inc., No. 05-cv-4811,
2015 WL 774655 *4 (N.D. Ill. Feb. 24, 2015).
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We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner's rejection of claim 1, and claims 2-5, 7-20, and 22-
32, which fall with claim 1.
Written Description
Whether a specification complies with the written description
requirement of 35 U.S.C. § 112, first paragraph (now 35 U.S.C. § 112(a)), is
a question of fact and is assessed on a case-by-case basis. See, e.g., Purdue
Pharma L.P. v. Paulding, Inc., 230 F.3d 1320, 1323 (Fed. Cir. 2000) (citing
Vas-Cath, Inc. v. Mahurkar, 935 F.2d 1555, 1561 (Fed. Cir. 1991)). The
disclosure, as originally filed, need not literally describe the claimed subject
matter (i.e., using the same terms or in haec verba) in order to satisfy the
written description requirement. But the Specification must convey with
reasonable clarity to those skilled in the art that, as of the filing date,
Appellants were in possession of the claimed invention. See id.
In rejecting claims 1-5, 7-20, and 22-32 under§ 112(a), the
Examiner asserts that neither the drawings nor the Specification provides
sufficient detail regarding how the exchange computer system accesses
portfolio data (Ans. 8-11 ). The Examiner, thus, finds that the Specification
fails to provide adequate written description support for "identifying,
automatically by a processor for portfolio data accessible via an exchange
computer system coupled with the processor ... portfolio data ... in another
portfolio accessible via the exchange computer system," as recited in
independent claim 1, and similarly recited in independent claims 16, 31, and
32 (Ans. 8-11).
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We, however, agree with Appellants that the Specification includes
the requisite written description support at least at paragraphs 20, 42, 50, 60,
and 69 (Reply Br. 13). Therefore, we do not sustain the Examiner's
rejection.
DECISION
The Examiner's rejection of claims 1-5, 7-20, and 22-32 under
35 U.S.C. § 101 is affirmed.
The Examiner's rejection of claims 1-5, 7-20, and 22-32 under
35 U.S.C. § 112(a) is reversed.
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).
AFFIRMED
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