Jan-Carl PlaggeDownload PDFPatent Trials and Appeals BoardAug 15, 201911802929 - (D) (P.T.A.B. Aug. 15, 2019) Copy Citation 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. 11/802,929 05/25/2007 Jan-Carl Plagge 10-604-US 3996 128144 7590 08/15/2019 Rimon PC One Embarcadero Center Suite 400 San Francisco, CA 94111 EXAMINER OYEBISI, OJO O ART UNIT PAPER NUMBER 3697 NOTIFICATION DATE DELIVERY MODE 08/15/2019 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): docketing.rimonlaw@clarivate.com eofficeaction@appcoll.com patentdocketing@rimonlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JAN-CARL PLAGGE ____________ Appeal 2018-002826 Application 11/802,929 Technology Center 3600 ____________ Before ANTON W. FETTING, JOSEPH A. FISCHETTI, and AMEE A. SHAH, Administrative Patent Judges. SHAH, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1, 2, and 4–32 under 35 U.S.C. § 101 as being directed to a judicial exception without significantly more. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Throughout this Decision, we refer to the Appellant’s Appeal Brief (“Appeal Br.,” filed Aug. 21, 2017), Reply Brief (“Reply Br.,” filed Jan. 23, 2018), and Specification (“Spec.,” filed May 25, 2007), and to the Examiner’s Answer (“Ans.,” mailed Jan. 9, 2018) and Final Office Action (“Final Act.,” mailed Sept. 20, 2016). 2 According to Appellant, the real party in interest is Deutsche Börse AG. Appeal Br. 2. Appeal 2018-002826 Application 11/802,929 2 STATEMENT OF THE CASE Appellant’s invention “relates to data processing apparatus and methods and, more particularly, to processing data relating to a financial instrument that has a plurality of constituents.” Spec. 1, ll. 7–9. The embodiment claimed relates to “building a financial minimum variance instrument having a plurality of constituents weighted by respective individual constituent weights.” Appeal Br. 2; Spec. 2, ll. 7–9. Claims 1, 14, and 27 are the independent claims on appeal. Independent claim 1, which we reproduce below, is illustrative of the subject matter on appeal: 1. A computer-implemented method of building a financial minimum variance instrument having a plurality of constituents weighted by respective individual constituent weights, comprising: accessing, by a computing device, data recorded over a predetermined first period of time, the data indicating characteristics of each of the plurality of constituents; determining, by a computing device, optimum constituent weights for all of the plurality of constituents by minimizing a financial instrument variance determined from said characteristics of each of the plurality of constituents; weighting, by a computing device, the plurality of constituents by the determined optimum constituent weights; determining, after a second period of time has elapsed, updated optimum constituent weights for all of the plurality of constituents by minimizing a further financial instrument variance determined from characteristics recorded during a third period of time; and weighting the plurality of constituents by the updated optimum constituent weights. Appeal Br. 17 (Claims App.). Appeal 2018-002826 Application 11/802,929 3 ANALYSIS 35 U.S.C. § 101 Framework An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. 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. Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). 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. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). 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 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” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India Appeal 2018-002826 Application 11/802,929 4 rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (185))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “[a] claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 176; 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. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical 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, Appeal 2018-002826 Application 11/802,929 5 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. Earlier this year, the PTO published revised guidance on the application of § 101. 2019 REVISED PATENT SUBJECT MATTER ELIGIBILITY GUIDANCE, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). Under the 2019 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 of organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MANUAL OF PATENT EXAMINING PROCEDURE (MPEP) §§ 2106.05(a)–(c), (e)–(h) (9th Ed., Rev. 08.2017, Jan. 2018)). 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. See 2019 Revised Guidance. Failure to Follow USPTO Guidelines We first address the Appellant’s contention that the Examiner’s rejection is in error because “[t]he Examiner has failed to follow these [May 2016] guidelines.” Appeal Br. 6 (citing MAY 2016 SUBJECT MATTER Appeal 2018-002826 Application 11/802,929 6 ELIGIBILITY UPDATE, 81 Fed. Reg. 27381 (May 6, 2016) (“May 2016 Update”); see also id. at 5, 7–10; Reply Br. 1–23. We disagree. We note that the 2019 Revised Guidance “applies to all applications, and to all patents resulting from applications, filed before, on, or after January 7, 2019.” 84 Fed. Reg. at 50. The USPTO has been clear that any guidance issued “does not constitute substantive rulemaking and does not have the force and effect of law.” Id. at 51; see also May 2016 Update, 81 Fed. Reg. at 27382. In particular, the guidance “does not create any right or benefit, substantive or procedural, enforceable by any party against the USPTO,” and although USPTO personnel are “expected to follow the guidance,” failure to do so “is not, in itself, a proper basis for either an appeal or a petition.” 2019 Revised Guidance, 84 Fed. Reg. at 51; see also May 2016 Update, 81 Fed. Reg. at 27382. Thus, to the extent the Appellant contends that there is “an error” in the Decision because the Examiner fails to follow the guidelines (see Appeal Br. 5–10; Reply Br. 1–3), we disagree. Here, the Examiner applies the Supreme Court’s two-step framework, described in Mayo and Alice, and considers Office guidelines in that application. See Final Act. 4–8. Specifically, the Examiner notifies the Appellant that “claim [1] is directed towards the abstract idea of processing data relating to a financial instrument[, which ]. . . is a fundamental economic practice; and as a result, claim 1 includes an abstract idea” (id. at 4; see also Ans. 3) and cites to judicial precedent in determining that the claims recite an abstract idea (Final Act. 4; Ans. 3). The Examiner further considers the elements “individually and as an ordered combination” (Final 3 The pages of the Reply Brief are not numbered. We refer to the title page as page 1 with each page thereafter consecutively numbered. Appeal 2018-002826 Application 11/802,929 7 Act. 4) and notifies the Appellant that “there are no meaningful limitations in the claim that transform the judicial exception into a patent eligible application such that the claim amounts to significantly more than the judicial exception itself” (id. at 8). We note that the guidelines do not require that the Examiner “must” write the rejection a certain way (cf. Appeal Br. 6); rather, the guidelines clearly state that the Examiner “should” make certain determinations (see, e.g., May 2016 Update, Memorandum 2–4; 2019 Revised Guidance, 84 Fed. Reg. at 53–56). The Examiner has notified the Appellant of the reasons for the rejection in a sufficiently articulate and informative manner as to meet the notice requirement of 35 U.S.C. § 132. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). We disagree with the Appellant’s contention that the Examiner’s rejection of claims 2 and 4–32 is in error because the Examiner “fails to explain why any claims other than claim 1 are rejected under § 101.” Appeal Br. 4; see also id. at 5; Reply Br. 3. There is no specific requirement that each claim be examined individually by the Examiner in determining that the claims are directed to an abstract idea. See Alice, 573 U.S. 208 at 217–21 (addressing the claims together). The Examiner includes the other claims in the heading of the rejection (Final Act. 3) and states that the other claims are “subject to the same analysis as in claim 1 and are rejected using the same rationale as in claim 1 above” (id. at 6 (emphasis omitted); see also Ans. 4–5). There is no indication that the Appellant was not put on notice of the Examiner’s rejection regarding claims 2 and 4–32. Furthermore, any alleged failure to follow the guidelines is not a proper basis for an appeal. The Appellant’s recourse for addressing such an Appeal 2018-002826 Application 11/802,929 8 alleged impropriety in the examination procedure would be to either (1) request the Examiner’s SPE to exercise supervisory oversight or (2) file a petition to the Director to invoke supervisory authority under 37 C.F.R. § 1.181(a)(3). Step One of the Mayo/Alice Framework Under the first step of the Mayo/Alice framework, the Examiner determines that claim 1 is “directed towards . . . processing data relating to a financial instrument[, which ]. . . is a fundamental economic practice; and as a result, claim 1 includes an abstract idea.” Final Act. 4; see also Ans. 3. “The [E]xaminer contends that the recited steps describe the concept of processing data, which corresponds to concepts identified as abstract ideas by the courts, such as information processing in ContentExtraction; and as a result, claim 1 includes an abstract idea.” Ans. 3. When viewed through the lens of the 2019 Revised Guidance, the Examiner’s analysis depicts the claimed subject matter as a “[c]ertain methods of organizing human activity—fundamental economic principles or practices (including hedging, insurance, mitigating risk)” under Prong One of Revised Step 2A. 2019 Revised Guidance, 84 Fed. Reg. at 52. The Appellant does not state to what they consider the claim directed or reciting, nor do they offer an alternate characterization of the claim. Rather, the Appellant argues that the “Appellant is unable to identify claim limitations that support finding that the claim is directed to the abstract idea of ‘processing data relating to a financial instrument’” (Appeal Br. 9–10) and “unable to identify any court case which found a method similar to the method recited in claims 1, 14 or 27 to be directed to an abstract idea” (id. at 10). Appeal 2018-002826 Application 11/802,929 9 Before determining whether the claims at issue are directed to an abstract idea, we first determine to what the claims are directed. [T]he “directed to” inquiry applies a stage-one filter to claims, considered in light of the specification, based on whether “their character as a whole is directed to excluded subject matter.” Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346 (Fed. Cir. 2015); see Genetic Techs. Ltd. v. Merial L.L.C., 818 F.3d 1369, 1375, 2016 WL 1393573, at *5 (Fed. Cir. 2016) (inquiring into “the focus of the claimed advance over the prior art”). Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). The question is whether the claims as a whole “focus on a specific means or method that improves the relevant technology” or are “directed to a result or effect that itself is the abstract idea and merely invoke generic processes and machinery.” McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314 (Fed. Cir. 2016). An examination of claim 1 shows that the claim recites “[a] computer- implemented method of building a financial minimum variance instrument having a plurality of constituents weighted by respective individual constituent weights, comprising”: (a) “accessing, by a computing device, data [indicating characteristics] recorded over a predetermined first period of time”; (b) “determining, by a computing device, optimum constituent weights for all of the plurality of constituents by minimizing a financial instrument variance determined from said characteristics”; (c) “weighting, by a computing device, the plurality of constituents by the determined optimum constituent weights”; (d) “determining, after a second period of time has elapsed, updated optimum constituent weights”; and (e) “weighting the plurality of constituents by the updated optimum constituent weights.” Appeal 2018-002826 Application 11/802,929 10 Appeal Br. 17 (Claims App.). We note that steps (d) and (e) are not recited as being performed by the computing device. Claim 14 recites a computer medium with instructions that cause a processor to “generate a financial instrument having a plurality of constituents weighted by respective individual constituent weights by:” receiving data, determining optimum constituent weights by maximizing a ratio based on total return and variance, and associating each constituent weight with its determined optimum weight. See id. at 21–22 (Claims App.). Claim 27 similarly recites “[a] data processing apparatus for adjusting constituent weights of a financial instrument having a plurality of constituents, the apparatus comprising:” an input unit configured to receive information, and an adjuster configured to determine a logarithmic return, generate a covariance matrix, and adjust weights based on the matrix. See id. at 26–27 (Claims App.). The computing device that performs steps (a), (b), and (c) of claim 1 of accessing, determining, and weighting, the processor of claim 14, and the data processing apparatus of claim 27 can comprise a general purpose computing system that “may include, but are not limited to, personal computers, server computers, hand-held or laptop devices, multiprocessor systems, microprocessor-based systems, network PCs, minicomputers, mainframe computers, distributed computing environments that include any of the above systems or devices, and the like.” Spec. 4, ll. 17–24. The Specification provides for a data processing apparatus and methods for “processing data relating to a financial instrument that has a plurality of constituents.” Spec. 1, ll. 7–9. In the “Description of the Related Art” section, the Specification discusses that “[i]ndices which are Appeal 2018-002826 Application 11/802,929 11 built from a number of constituents are well known in the art.” Spec. 1, l. 11. The Specification further discusses how the Dow Jones Industrial Index calculates a benchmark using price as the only consideration in determining the value of the index, such that “the price movement of even a single security will heavily influence the value of the index even though the dollar shift is less significant in a relatively highly valued issue,” as opposed to “a price-weighted index, market value or capitalization weighted indices . . . [that] factor in the size of a company . . . [so that] a relatively small shift in the price of a large company will heavily influence the value of the index.” Id. at 1, l. 17–2, l. 2. “However, the charts of such indices are subject to great variations . . . [that] are undesirable since they reduce the predictability of a future chart evolution.” Id. at 2, ll. 3–5. Conventionally, “an investor aims at maximizing the return of a portfolio for a given risk,” the risk being “determined from the variance of the return.” Id. at 4, ll. 7–9. “A risk-averse investor tries to keep the risk of an investment as low as possible.” Id. at 4, ll. 9–10. Embodiments of the invention “provide the risk-averse investor with a financial instrument allowing for risk-averse decisions” and “provide the investor with a trade-off between a risk as low as possible and a return as high as possible.” Id. at 4, ll. 10–16. When considered collectively and under the broadest reasonable interpretation of the claims’ limitations, the claims recite a method and apparatuses for processing data to generate, build, and adjust a financial instrument having weighted constituents.4 Accessing and receiving data are 4 We note that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 Appeal 2018-002826 Application 11/802,929 12 extra-solution activities. See 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) (characterizing data gathering steps as insignificant extra-solution activity). The steps of determining weights are recited as being performed by “minimizing a financial instrument variance determined from” characteristics and by “maximizing a ratio” without any details as to how the minimizing, maximizing, and determination of characteristics are done, i.e., in what way(s) technologically or by what algorithm. Similarly, the steps of weighting constituents, determining a logarithmic return, and generating a matrix based on those returns are functionally recited without any detail how the results are accomplished, i.e., in what way(s) technologically or by what algorithm. Determining weights, weighting constituents, determining a return, and generating a matrix comprise calculating or analyzing data by standard mathematical correlations or algorithms (see Spec. 8, l. 13–12, l. 13; 13, l. 23–16, l. 9), which can be done mentally. Processing data to generate, build, and adjust a financial instrument having weighted constituents is similar to the concepts of “selecting certain information, analyzing it using mathematical techniques, and reporting or displaying the results of the analysis” in SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018), of collecting, analyzing, manipulating, and processing data and displaying the results of the analysis, manipulation, and processing in Intellectual Ventures I LLC v. Capital One Fin. Corp., 850 F.3d 1332, 1340 (Fed. Cir. 2017), of “hedging risk in the energy market” in Bilski, 561 U.S. at 612, of “financial instruments that are (Fed. Cir. 2016). The Board’s “slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. at 1241. Appeal 2018-002826 Application 11/802,929 13 designed to protect against the risk of investing in financial instruments” in In re Chorna, 656 F.App’x 1016, 1020 (Fed. Cir. 2016), and of calculating alarm limit values for a specific purpose in Flook, 437 U.S. at 594–95. Accordingly, we conclude the claims recite a way of evaluating information, a concept performed in the human mind, which is one of the mental processes identified in the 2019 Revised Guidance (84 Fed. Reg. at 52) to generate, build, and adjust a financial instrument, a fundamental economic principles, which is one of the “[c]ertain methods of organizing human activity,” processes identified in the 2019 Revised Guidance (id.). As such, we find unpersuasive the Appellant’s arguments that there is no “court case which found a method similar to the method recited in claims 1, 14 or 27 to be directed to an abstract idea” (Appeal Br. 10; see also id. at 11) and that the Examiner ignores the claim language (id. at 12; see also Reply Br. 1–2). Under Step 2A, Prong 2 of the 2019 Revised Guidance, 84 Fed. Reg. at 54, we look to whether the claims “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception,” i.e., “integrates a judicial exception into a practical application.” Here, the Appellant contends that “the claims effect the transformation of the plurality of constituent weights.” Appeal Br. 13. When viewed through the lens of the 2019 Revised Guidance, the Appellant contends that the elements of the claim integrate the abstract idea into a practical application because “an additional element effects a transformation or reduction of a particular article to a different state or thing.” 84 Fed. Reg. at 55. We disagree. The Appellant does state what the weights are transformed into. The weighted data remains data and is not transformed Appeal 2018-002826 Application 11/802,929 14 into a different state. See Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir. 2018) (“That the parser transforms data from source to object code does not demonstrate non-abstractness without evidence that this transformation improves computer functionality in some way.”). Rather, the claims here merely use a general purpose computer as tool for calculating and using weighted data. The Appellant also contends that “[t]he claimed invention entails an unconventional technological solution to a technical problem.” Reply Br. 4. When viewed through the lens of the 2019 Revised Guidance, the Appellant contends that the elements of the claim integrate the abstract idea into a practical application by “reflect[ing] an improvement in the functioning of a computer.” 84 Fed. Reg. at 55 (citing DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1258–59 (Fed. Cir. 2014). We disagree. In DDR Holdings, the Federal Circuit determined that the claims addressed the problem of retaining website visitors who, if adhering to the routine, conventional functioning of Internet hyperlink protocol, would be transported instantly away from a host’s website after clicking on an advertisement and activating a hyperlink. DDR Holdings, 773 F.3d at 1257. The Federal Circuit, thus, held that the claims were directed to statutory subject matter because they claim a solution “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of computer networks.” Id. The court cautioned that “not all claims purporting to address Internet-centric challenges are eligible for patent.” Id. at 1258. And the court contrasted the claims to those at issue in Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709 (Fed. Cir. 2014), in that, in DDR Holdings, the computer network was not operating in its “normal, Appeal 2018-002826 Application 11/802,929 15 expected manner” and the claims did not “recite an invention that is [] merely the routine or conventional use of the Internet.” Id. at 1258–59. Here, the Appellant contends that the claim addresses “an investment problem” by “reduc[ing] . . . undesirable variations” in financial indices. Reply Br. 5. However, investment problems based on unpredictable or varying data are not technological problems or problems rooted in technology arising out of computer networks, but rather problems that existed prior to the Internet and computers. See Bilski, 561 U.S. at 611 (describing that protecting against risk, also known as hedging, was old and well known financial issue). Also, unlike DDR Holdings, here, the purported solution comprises the use of a conventional computing device or processor operating in its ordinary capacity (see supra) to access, receive, determine, weight, associate, generate, and adjust data. The Appellant does not direct attention to, and we do not see, where the Specification describes computer components, such as a computing device and processor, acting in an unconventional manner to further the desired solution of building, generating, and adjusting a financial instrument. Thus, we are not persuaded of error in the Examiner’s determination that claims 1, 14, and 27 are directed to an abstract idea. The Second Step Under the second step in the Alice framework (corresponding to Step 2B of the 2019 Revised Guidance), we find supported the Examiner’s determination that the claims’ limitations, taken individually or as an ordered combination, do not amount to significantly more than the judicial exception and that the “generic computer components recited as performing generic computer functions that are well-understood, routine and Appeal 2018-002826 Application 11/802,929 16 conventional activities amount to no more than implementing the abstract idea with a computerized system.” Final Act. 4–8; Ans. 5–6. The Appellant does not offer additional reasoning or argument why the claims “[a]dd[] 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.” 2019 Revised Guidance, 84 Fed. Reg. at 56. Taking the claimed elements separately, the function performed by the computer at each step of the process is purely conventional. The claimed computing device and processor comprise a conventional, general purpose computer. See supra. It is clear, from the Specification, including the claims’ language, that the “limitations require no improved computer resources [the Appellant] claims to have invented, just already available computers, with their already available basic functions, to use as tools in executing the claimed process” performed by the claimed system. SAP Am., 898 F.3d at 1169–70. We agree with the Examiner that the computing device and processor operate in their ordinary and conventional capacities to perform the well-understood, routine, and conventional functions of accessing, receiving, determining, weighting, associating, generating, and adjusting data. See Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016) (gathering, sending, monitoring, analyzing, selecting, and presenting information does not transform the abstract process into a patent-eligible invention); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (data gathering and displaying are well-understood, routine, and conventional activities); SAP Am., 898 F.3d at 1170 (“[A]n invocation of already-available computers that are not themselves plausibly asserted to Appeal 2018-002826 Application 11/802,929 17 be an advance, for use in carrying out improved mathematical calculations, amounts to a recitation of what is ‘well-understood, routine, [and] conventional.’”) (quoting Mayo, 566 U.S. at 73). Considered as an ordered combination, the components of the Appellant’s claims add nothing that is not already present when the steps are considered separately. The sequence of data communication (accessing and receiving), analyzing (determining and weighting), and using the analysis to generate or adjust data is equally generic and conventional or otherwise held to be abstract. See Capital One, 850 F.3d at 1341 (holding that the sequence of collecting, organizing, identifying, mapping, organizing, defining, and detecting was abstract); Elec. Power, 830 F.3d at 1354–56 (holding that the sequence of gathering, analyzing, and displaying in real-time was abstract); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (holding that the sequence of data retrieval, analysis, modification, generation, display, and transmission was abstract); SAP Am., 898 F.3d at 1170 (holding that the sequence of storing, receiving, analyzing, and generating data was abstract). The ordering of the steps is, therefore, ordinary and conventional. Thus, we are not persuaded of error in the Examiner’s determination that the limitations of claims 1, 14, and 27 do not transform the claims into significantly more than the abstract idea. For at least the reasons above, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of independent claims 1, 14, and 27. Regarding the dependent claims, the Appellant contends that they “recite additional elements that are more than merely the alleged abstract idea.” Appeal Br. 13. However, the Appellant merely restates the Appeal 2018-002826 Application 11/802,929 18 limitations of the claims (id. at 13–16) and contends that “[t]he additional data manipulations further remove the claims from the alleged abstract idea. These are specific process steps of manipulating data to achieve a beneficial result” (id. at 16). The Appellant provides no further reasoning or evidence (other than that provided for the independent claims) as to why the Examiner’s rejection of the dependent claims is in error. See In re Jung, 637 F.3d at 1365 (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections,” citing Ex Parte Frye, 94 USPQ2d 1072 (BPAI 2010) (precedential) (“The panel then reviews the obviousness rejection for error based upon the issues identified by appellant, and in light of the arguments and evidence produced thereon.”)). Thus, we are not persuaded of error in the Examiner’s determinations that dependent claims 2, 4–13, 15–26, and 28–32 are directed to an abstract idea and that the limitations of these claims do not transform the claims into significantly more than the abstract idea. For at least the reasons above and the reasons for the independent claims, we sustain the Examiner’s rejection under 35 U.S.C. § 101 of dependent claims 2, 4–13, 15–26, and 28–32. DECISION The Examiner’s rejection of claims 1, 2, and 4–32 under 35 U.S.C. § 101 is AFFIRMED. Appeal 2018-002826 Application 11/802,929 19 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)(l)(iv). AFFIRMED Copy with citationCopy as parenthetical citation