Fantasy Pot Odds, LLC

Patent Trials and Appeals Board

Jul 1, 2020

2019007003 (P.T.A.B. Jul. 1, 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.
15/189,803 06/22/2016 Andrew D. STICKEL 110382-0003.US2 7388
114262 7590 07/01/2020
Black, McCuskey, Souers & Arbaugh, LPA
220 Market Avenue, South, Suite 1000
Canton, OH 44702
EXAMINER
KIM, KEVIN Y
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
eofficeaction@appcoll.com
ip@bmsa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ANDREW D. STICKEL
__________

Appeal 2019-007003
Application 15/189,803
Technology Center 3700
__________

Before DANIEL S. SONG, MICHAEL J. FITZPATRICK, and
LISA M. GUIJT, Administrative Patent Judges.

FITZPATRICK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant, Fantasy Pot Odds, LLC,1 appeals under 35 U.S.C. § 134(a)
from the Examiner’s final decision rejecting claims 1 and 3–20. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42.
Appellant identifies itself as the sole real party in interest. Appeal Br. 3.
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STATEMENT OF THE CASE
The Specification
The Specification “relates in general to fantasy sports, and more
particularly to the selection of players for a fantasy team.” Spec. ¶2.
The Rejected Claims
Claims 1 and 3–20 are rejected. Final Act. 1. No other claims are
pending. Id. Claims 1, 18, and 19 are independent. Appeal Br. 13–17.
Claim 1 is illustrative and reproduced below.
1. A system to calculate discounted projected values
of players of a fantasy sports league comprising:
weighted average logic configured to receive two or
more seasons of prior value based drafting values associated
with athletes of a first player position of a plurality of player
position types of the fantasy sports league, wherein the
weighted average logic is configured to calculate weighted
value based drafting values of players of the first position
based, at least in part, on the two or more seasons of prior value
based drafting values, and wherein weight values of at least two
of the two or more seasons of prior value based drafting values
are different;
curved line fit logic configured to fit the weighted value
based drafting values to a curved line;
projected value logic configured to calculate new
projected values of players of the first position based, at least in
part, on the curved line; and
discount projected value logic configured to create
discounted projected values of players of the first position by
subtracting a constant value from each new projected value,
wherein the discounted projected values provide a draft
selection guide that is an indication of future performance of the
athletes in the first player position relative to athletes of the
plurality of player position types
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a draft reporting module configured to generate a draft
strategy based, at least in part, on the discounted projected
value, wherein the draft reporting module is configured to
output the draft strategy to allow a person drafting a fantasy
sports team to draft sports athletes based, at least in part, on the
draft strategy.
Id. at 13.
The Examiner’s Rejection
The Examiner rejected all pending claims under the judicial exception
to 35 U.S.C. § 101. Final Act. 2.
DISCUSSION
Patent Eligibility Framework
Section 101 provides that “[w]hoever invents or discovers any new
and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof, may obtain a patent therefor, subject to
the conditions and requirements of this title.” 35 U.S.C. § 101. However,
the Supreme Court has “long held that this provision contains an important
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).
In analyzing patent-eligibility questions under the judicial exception
to 35 U.S.C. § 101, we “first determine whether the claims at issue are
directed to a patent-ineligible concept.” Alice, 573 U.S. at 218. If the claims
are determined to be directed to an ineligible concept, then we “consider the
elements of each claim both individually and ‘as an ordered combination’ to
determine whether the additional elements ‘transform the nature of the
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claim’ into a patent-eligible application.” Id. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 77 (2012)).
On January 7, 2019, the Director issued 2019 Revised Patent Subject
Matter Eligibility Guidance (“Revised Guidance”), which explains how the
Director directs that patent-eligibility questions under the judicial exception
to 35 U.S.C. § 101 be analyzed. 84 Fed. Reg. 50–57; see also October 2019
Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf).
Per the Revised Guidance, the first step of Alice (i.e., Office Step 2A)
consists of two prongs. In Prong One, we must determine whether the claim
recites a judicial exception, i.e., an abstract idea, a law of nature, or a natural
phenomenon. 84 Fed. Reg. at 54 (Section III.A.1.). If it does not, the claim
is patent eligible. Id. With respect to the abstract idea category of judicial
exceptions, an abstract idea must fall within one of the enumerated
groupings of abstract ideas in the Revised Guidance or be a “tentative
abstract idea,” with the latter situation predicted to be rare. Id. at 51–52
(Section I, enumerating three groupings of abstract ideas), 54
(Section III.A.1., describing Step 2A Prong One), 56–57 (Section III.C.,
explaining the identification of claims directed to a tentative abstract idea).
If a claim does recite a judicial exception, we proceed to Step 2A
Prong Two, in which we determine if the “claim as a whole integrates the
recited judicial exception into a practical application of the exception.” Id.
at 54 (Section II.A.2.). If it does, the claim is patent eligible. Id.
If a claim recites a judicial exception and fails to integrate it into a
practical application, we then proceed to the second step of Alice (i.e., Office
Step 2B). In that step, we evaluate the additional limitations of the claim,
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both individually and as an ordered combination, to determine whether they
provide an inventive concept. Id. at 56 (Section III.B.). In particular, we
look to whether the claim:
 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
 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.
Id.
Analysis
Appellant argues against the rejection of all claims together. Appeal
Br. 8–11. We choose claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Revised Guidance Step 2A Prong One
In Prong One of Step 2A, we determine whether claim 1 recites a
judicial exception (i.e., a law of nature, natural phenomenon, or abstract
idea).
The Examiner determined that claim 1 is “directed to organizing
information through mathematical correlations and algorithms, management
of a game, and organized human activity.” Final Act. 2; see also id. at 2–3
(citing Gottschalk v. Benson, 409 U.S. 63 (1972) with respect to algorithms)
and 3–4 (citing Planet Bingo, LLC v. VKGS LLC, 576 F. App’x 1005 (Fed.
Cir. 2014) with respect to management of a game and human activity).
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Appellant “respectfully disagrees” but does not present arguments
rebutting the Examiner’s determination that claim 1 recites the identified
abstract ideas. Appeal Br. 8. More specifically, the Appeal Brief explicitly
concedes that claim 1 recites an algorithm and never discusses the other
abstract ideas identified by the Examiner (i.e., “management of a game” and
“organized human activity”). Id.; see, e.g., Appeal Br. 9 (“Claims 1, 18, and
19 are directed to a new and useful algorithm . . . .”), 11 (“Although the
claim recites an abstract idea (an algorithm) . . . .”).
On the record presented, we are not apprised of error in the
Examiner’s determination, under Step 2A Prong One of the Revised
Guidance, that claim 1 recites an abstract idea, specifically an abstract idea
in the mathematical concepts category (i.e., an “algorithm”) as set forth in
relevant case law and the Revised Guidance. See Bilski v. Kappos, 561 U.S.
593, 611 (2010) (“The concept of hedging . . . reduced to a mathematical
formula . . . is an unpatentable abstract idea.”); Diamond v. Diehr, 450 U.S.
175, 191 (1981) (“A mathematical formula as such is not accorded the
protection of our patent laws . . . .”) (citing Benson, 409 U.S. 63); 84 Fed.
Reg. at 52.
Appellant’s claim 1 is not ineligible merely because it recites an
algorithm. Cf. Mayo, 566 U.S. at 71 (“[A] process is not unpatentable
simply because it contains a law of nature or a mathematical algorithm.”)
(quoting Diehr, 450 U.S. at 187). In fact, “an application of a law of nature
or mathematical formula to a known structure or process may well be
deserving of patent protection.” Id. (quoting Diehr, 450 U.S. at 187).
Appellant cites Diehr as support for the purported eligibility of
claim 1. Appeal Br. 9. But Diehr does not provide such support. As noted
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in Diehr, “[t]ransformation and reduction of an article ‘to a different state or
thing’ is the clue to the patentability of a process claim that does not include
particular machines.” Diehr, 450 U.S. at 184 (quoting Benson, 409 U.S. at
70). In Diehr, the requisite transformation was present in that the claims
required transformation of “raw, uncured synthetic rubber, into a different
state.” 450 U.S. at 184.
Appellant has not identified any such transformation with respect to
claim 1. Nor do we discern any. Appellant’s claim 1 is more like the
ineligible subject matter claimed in Parker v. Flook, 437 U.S. 584, 585
(1978). There, the claims “provide[d] a new and presumably better method
for calculating alarm limit values.” Id. at 594–95. In holding the claims
ineligible, the Supreme Court held that, “if a claim is directed essentially to a
method of calculating, using a mathematical formula, even if the solution is
for a specific purpose, the claimed method is nonstatutory.” Id. at 595
(quoting In re Richman, 563 F.2d 1026, 1030 (CCPA 1977)).
Revised Guidance Step 2A Prong Two
In Prong Two of Step 2A, we determine whether claim 1 as a whole
integrates the recited judicial exceptions (here, abstract ideas) into a practical
application of the exception.
One exemplary consideration as to whether a recited abstract idea is
integrated into a practical application is whether additional claim language
“reflects an improvement in the functioning of a computer, or an
improvement to other technology or technical field.” 84 Fed. Reg. at 55.
Appellant argues that such is the case here. Appeal Br. 9. In particular,
Appellant argues that claim 1 is “directed to a new and useful algorithm for
analyzing player data to estimate future performance and generate a new and
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improved draft strategy” and thus “solve[s] a technical problem (evaluating
players to generate a draft strategy).” Id. As the Examiner points out,
however, Appellant does not show how or why evaluating players to
generate a draft strategy is a technical problem or that its algorithm for doing
so is an improvement. Ans. 7–8. In particular, the Examiner correctly
states:
[T]he algorithm does not improve the functionality of the
computer, technology, or field. Indeed, the computer is only seen
as a vehicle for implementing the algorithm, but the algorithm
itself is directed to a way of generating a draft strategy for a
fantasy sports team. The alleged improvement is not in the
functioning of the computer. Furthermore, the technology is not
being improved for similar reasons; the computer itself is not of
importance to the invention. Finally, the Examiner does not
consider a different methodology for drafting a sports team to be
an improvement. Without a standardized metric and proven
results, the claimed invention can only be seen as an alternative
way of drafting a fantasy sports team.
Ans. 7–8. The Examiner has the better position.
Revised Guidance Step 2B
In Prong Two of Step 2B, we evaluate the additional limitations of
claim 1, both individually and as an ordered combination, to determine
whether they provide an inventive concept.
Relevant to this part of the eligibility analysis, Appellant asserts that
“[t]he solution of the problem (analyzing data to generate a draft strategy to
determine how to select players) employs generic components combined in
an unconventional manner.” Appeal Br. 11; see also id. (“[T]he ‘additional
features’ are more than well-understood, routine, conventional activity.”).
Appellant, however, does not elaborate or otherwise support this assertion.
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Also relevant to Prong Two of Step 2B, Appellant asserts that Electric
Power Group, LLC v. Alstom S.A., 830 F.3d 1350 (Fed. Cir. 2016) supports
a determination that claim 1 is patent eligible. Appeal Br. 10. In that regard,
Appellant notes that Electric Power Group held claims ineligible for “not
requir[ing] an arguably inventive set of components or methods, such as
measurement devices or techniques, that would generate new data” and for
“not invoke[ing] any assertedly inventive programming.” Appeal Br. 10
(quoting Electric Power Group, 830 F.3d at 1355). Seizing on the
emphasized language, Appellant argues that claim 1 is “directed to a new
technique for analyzing player data that would generate new (and different)
data than prior techniques and would thus entail inventive programming.”
Appeal Br. 10. Appellant’s argument overstates Electric Power Group. The
Court in that case did not hold that claims that include the generation of
new/different data—here, a draft strategy—necessarily entail inventive
programming and are patent eligible. 830 F.3d at 1355.
Appellant also argues that claim 1 does not preempt all uses of the
abstract idea. Appeal Br. 11. But Appellant cannot overcome the § 101
rejection by showing a lack of complete preemption. Appellant must show
that the rejection is not warranted under the Mayo/Alice two-step test, which
it has not done. See Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d
1371, 1379 (Fed. Cir. 2015) (“While preemption may signal patent ineligible
subject matter, the absence of complete preemption does not demonstrate
patent eligibility. . . . Where a patent’s claims are deemed only to disclose
patent ineligible subject matter under the Mayo framework, as they are in
this case, preemption concerns are fully addressed and made moot.”).
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For the foregoing reasons, we affirm the rejection of claim 1 under the
judicial exception to § 101, as well as that of claims 3–20, which fall
therewith.
SUMMARY
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1, 3–20 101 Eligibility 1, 3–20

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