Joseph Noviello

Patent Trials and Appeals Board

Dec 21, 2021

2021003171 (P.T.A.B. Dec. 21, 2021)

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.
12/763,849 04/20/2010 Joseph C. Noviello 07-6256-C1 6199
63710 7590 12/21/2021
CANTOR FITZGERALD, L.P.
INNOVATION DIVISION
110 EAST 59TH STREET
NEW YORK, NY 10022
EXAMINER
KHATTAR, RAJESH
ART UNIT PAPER NUMBER
3693
NOTIFICATION DATE DELIVERY MODE
12/21/2021 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):
Caitlyn.kelly@chareiter.com
gabriella.zisa@chareiter.com
patentdocketing@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOSEPH C. NOVIELLO
____________

Appeal 2021-003171
Application 12/763,849
Technology Center 3600
____________

Before ANTON W. FETTING, TARA L. HUTCHINGS, and
MATTHEW S. MEYERS Administrative Patent Judges.

HUTCHINGS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1–5, 7–10, and 12–24, which constitute all the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. In the Corrected Appeal Brief (“Appeal Br.,” filed on Jan. 13, 2021),
Appellant identifies BGC Partners, Inc. as the real party in interest. Appeal
Br. 1.
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CLAIMED INVENTION
Appellant’s claimed invention relates to “providing an operator
interface for a radar display of market data.” Spec. ¶ 2.
Claims 1, 22, and 23 are the independent claims on appeal. Claim 1,
reproduced below with emphasis and bracketed notations added, is
illustrative of the claimed subject matter:
1. A system for providing an operator interface,
comprising:
a processor;
a memory that stores instructions which, when executed
by the processor, direct the processor to control to:
[(i)] display, on a first display of a graphical user
interface of a display device of the system, trader requirements
indicia corresponding to a plurality of trading parameters
designated by a trader, each trading parameter comprising a
parameter concerning at least one of a purchase and sale of a
quantity of at least one financial instrument associated with the
trading parameter, each of the plurality of trading parameters
being respectively associated with a corresponding one of a
corresponding plurality of market data indicia;
[(ii)] receive, over a communication network, in real
time, market data, in which the market data comprises real time
price information about the at least one financial instrument
associated with each trading parameter;
[(iii)] automatically in real time in response to receiving
the market data,
(a) perform the following for at least one of the plurality
of trading parameters:
[(1)] determine a probability of the market data
satisfying the respective trading parameter;
[(2)] determine, based on the probability, a display
distance between a display of the trader requirements indicia
and a display of the market data indicia as a market data circle
corresponding to the respective trading parameter; and
[(3)] update the first display to move a display of the
market data circle from a first location on the first display to a
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second location on the first display other than the first location
and that is the determined distance away from the trader
requirements indicia on the first display, in which the
determined distance between the market data circle and the
trader requirements indicia indicates the determined
probability; and
(b) determine whether the trader requirements indicia is
at a position overlapped by a given market data circle of the
market data circles on the first display; and
[(iv)] automatically in real time in response to
determining that the trader requirements indicia is at a position
overlapped by the given market data circle, initiate a trade
corresponding to a given trading parameter of the plurality of
trading parameters which corresponds to the given market data
circle, in which to initiate the trade comprises purchasing or
selling a quantity of the at least one financial instrument
associated with the given trading parameter.
Appeal Br. 21–22 (Claims Appendix).

REJECTION
Claims 1–5, 7–10, and 12–24 are rejected under 35 U.S.C. § 101 as
directed to a judicial exception without significantly more.

ANALYSIS
Patent-Ineligible Subject Matter
Independent Claims 1, 22, and 23
Appellant argues independent claims 1, 22, and 23 as a group. Appeal
Br. 5–18. We select independent claim 1 as representative. Independent
claims 22 and 23 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
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Principles of Law
35 U.S.C. § 101
An invention is patent eligible if it is a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted § 101 to include implicit
exceptions: “[l]aws of nature, natural phenomena, and abstract ideas are not
patentable.” E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 589 (2013)).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-part framework, described in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), and Alice, “for distinguishing patents that claim laws of nature,
natural phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217. 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. Id. According to
Supreme Court precedent, concepts determined to be abstract ideas include
certain methods of organizing human activity, such as fundamental
economic practices (id. at 219–20; Bilski v. Kappos, 561 U.S. 593, 611
(2010)); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95
(1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69
(1972)).
If the claims are not directed to a patent-ineligible concept, such as an
abstract idea, the inquiry ends. Otherwise, the inquiry proceeds to the
second step where the elements of the claims are considered “individually
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and ‘as an ordered combination’” to determine whether there are additional
elements that “‘transform the nature of the claim’ into a patent-eligible
application.” Alice, 573 U.S. at 217 (quoting Mayo, 566 U.S. at 79, 78).
This is “a search for an ‘inventive concept’ — i.e., 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.’” Id. at 217–18 (alteration in original).
USPTO Guidance
The U.S. Patent and Trademark Office (“USPTO”) has set out agency
policy with respect to its interpretation of Supreme Court and Federal Circuit
decisions concerning the requirements for subject matter eligibility. 2019
Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50, 51
(Jan. 7, 2019) (“2019 Guidance”); see also October 2019 Update
(responding to comments on the 2019 Guidance solicited from the public);2
Berkheimer Memo.3 “The guidance sets out agency policy with respect to
the USPTO’s interpretation of the subject matter eligibility requirements of
35 U.S.C. § 101 in view of decisions by the Supreme Court and the Federal
Circuit.” 2019 Guidance, 84 Fed. Reg. at 51. However, the “guidance . . .
does not create any right or benefit, substantive or procedural, enforceable

2 October 2019 Update: Subject Matter Eligibility, available at:
https://www.uspto.gov/sites/default/files/documents/
peg_oct_2019_update.pdf
3 Memorandum from Robert W. Bahr, Deputy Commissioner for Patent
Examination Policy, to the Patent Examining Corps, “Changes in
Examination Procedure Pertaining to Subject Matter Eligibility, Recent
Subject Matter Decision (Berkheimer v. HP, Inc.)” (April 19, 2018),
available at: https://www.uspto.gov/sites/default/files/documents/memo-
berkheimer-20180419.PDF
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by any party against the USPTO” and “[r]ejections will continue to be based
upon the substantive law.” Id. Because the MANUAL OF PATENT
EXAMINATION PROCEDURE §§ 2104–06, Ninth Edition, Rev. 10.2019 (June
2020) (“MPEP”) now incorporates the 2019 Guidance, the October 2019
Update, and the Berkheimer Memo, this opinion refers to the MPEP instead
of those materials.
The MPEP acknowledges that “[t]he Alice/Mayo two-part test is the
only test that should be used to evaluate the eligibility of claims under
examination.” MPEP § 2106(I). It treats the first step (i.e., whether the
claim is directed to a judicial exception) as a two-prong inquiry. Id.
§ 2106.04(II). “Prong One asks does the claim recite an abstract idea, law of
nature, or natural phenomenon?” Id. § 2106.04(II)(A)(1). For determining
whether a claim recites an abstract idea, the MPEP defines enumerated
groupings of abstract ideas, distilled from precedent. Id. § 2106.04(a); see
also id. § 2106.04(a)(2) (defining abstract idea groupings). If the claim
recites a judicial exception, then the claim requires further analysis at Prong
Two. Id. § 2106.04(II)(A)(1). “Prong Two asks does the claim recite
additional elements that integrate the judicial exception into a practical
application?” Id. § 2106.04(II)(A)(2); see also id. § 2106.04(d). Only if a
claim (1) recites a judicial exception and (2) does not integrate that
exception into a practical application, do we then look, under Step 2B, to
whether the additional elements, individually or in combination, provide an
inventive concept. See MPEP §§ 2106(III), 2106.05.
“An inventive concept ‘cannot be furnished by the unpatentable law
of nature (or natural phenomenon or abstract idea) itself.’” Id. § 2106.05(I)
(quoting Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1376 (Fed. Cir.
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2016)). Among the considerations in determining whether the additional
elements, individually or in combination, amount to significantly more than
the exception itself, we look to whether they add a specific limitation beyond
the judicial exception that is not “well-understood, routine, conventional” in
the field or simply append well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception. MPEP § 2106.05(II).
Rejection
The Examiner determined that claim 1 recites the concept of initiating
a trade. Final Act. 2, 4. The Examiner determined that this concept involves
a fundamental economic practice, which is a subgrouping of the “Certain
Methods of Organizing Human Activity” grouping of abstract ideas. Id.
at 4. The Examiner also determined that the claim recites a mental process.
Id. at 3. Finally, the Examiner determined that the claim does not recite
additional elements that integrate the abstract idea into a practical
application or that amount to significantly more than the abstract idea. Id.
at 4–5. The Examiner reached similar conclusions regarding the other
independent claims, and determined that the pending dependent claims
further define the abstract idea but also do not include additional elements
that integrate the abstract idea into a practical application or that amount to
significantly more than the abstract idea. Id. at 6.
Step One of the Mayo/Alice Framework (Guidance, Step 2A)
We are not persuaded that the Examiner erred in determining that
independent claim 1 is directed to an abstract idea. Appeal Br. 6–15. The
Federal Circuit has explained that “the ‘directed to’ inquiry applies a stage-
one filter to claims, considered in light of the specification, based on
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whether ‘their character as a whole is directed to excluded subject matter.’”
Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)
(quoting Internet Patents Corp. v. Active Network, Inc., 790 F.3d 1343, 1346
(Fed. Cir. 2015)). 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, it is clear from the Specification (including the claim
language) that claim 1 focuses on an abstract idea, and not on any
improvement to technology and/or a technical field.
The Specification is titled “RADAR DISPLAY OF TRADER
REQUIREMENTS,” and describes, in the Background section, that
“electronic trading systems have gained widespread acceptance for trading a
wide variety of items, such as goods, services, financials instruments, and
commodities.” Spec. ¶ 3. Electronic trading systems provide information to
a trader using specific displays that indicate relationships between market
data and the trader’s trading requirements. Id. ¶ 4. However, current
techniques for displaying a probability that market data satisfies the trader’s
trading requirements suffer “disadvantages and problems” that the claimed
invention seeks to reduce or eliminate. Id. ¶ 5.
In particular, the Specification describes displaying a trader
requirements block that corresponds to the trader-designated requirements
and a market data circle comprising market data. Id. ¶ 6. A distance
between the market data circuit and the trader requirements block indicates a
probability that the market data satisfies the trader-designated requirement.
Id. The closer a market data circle is displayed to the trader requirements
block, the greater the probability that the market data can satisfy the trader
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designated requirement. Id. ¶ 7; see also id. ¶¶ 17, 41 (describing that the
market data circle moves closer or further away from the trader designated
requirements as market data changes). If the market data circle intersects the
trader requirements block, then the market data satisfies the trader
designated requirement. Id. ¶ 7. Thus, the display shows the trader a
probability that market data (e.g., a market price for a stock share) satisfies a
trader designated requirement specified by the trader (e.g., a price at which
the trader will buy the stock share). Id. The trader initiates a trade when the
market data circle intersects the trader requirements block either
automatically or by the trader pressing a button. Id. ¶¶ 8, 45, 52.
Consistent with this disclosure, claim 1 recites a system directed by
stored instructions to perform the following steps: (1) display trader
requirements indicia corresponding to a plurality of trading parameters
designated by a trader, i.e.,
display . . . trader requirements indicia corresponding to a
plurality of trading parameters designated by a trader, each
trading parameter comprising a parameter concerning at least one
of a purchase and sale of a quantity of at least one financial
instrument associated with the trading parameter, each of the
plurality of trading parameters being respectively associated with
a corresponding one of a corresponding plurality of market data
indicia
(step (i)); “receive . . . market data, in which the market data comprises . . .
price information about the at least one financial instrument associated with
each trading parameter” (step (ii));
in response to receiving the market data,
(a) perform the following for at least one of the plurality
of trading parameters:
determine a probability of the market data
satisfying the respective trading parameter;
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determine, based on the probability, a display
distance between a display of the trader requirements
indicia and a display of the market data indicia as a
market data circle corresponding to the respective trading
parameter; and
update . . . to move a display of the market data
circle from a first location . . . to a second location . . .
other than the first location and that is the determined
distance away from the trader requirements indicia . . . ,
in which the determined distance between the market
data circle and the trader requirements indicia indicates
the determined probability; and
(b) determine whether the trader requirements indicia is
at a position overlapped by a given market data circle of the
market data circles
(step (iii)); and
in response to determining that the trader requirements indicia
is at a position overlapped by the given market data circle,
initiate a trade corresponding to a given trading parameter of
the plurality of trading parameters which corresponds to the
given market data circle, in which to initiate the trade comprises
purchasing or selling a quantity of the at least one financial
instrument associated with the given trading parameter
(step (iv)).
We agree with the Examiner that these limitations, when given their
broadest reasonable interpretation, recite a method for initiating a trade.
Final Act. 3–4. In particular, performing steps (i) through (iii) results in
determining whether a condition for initiating a trade is met (i.e., trader
requirements indicia is at a position overlapped by a given market data circle
of the market data circles). When the condition is met at step (iv), the
method initiates a corresponding trade (i.e., a trade corresponding to a given
trading parameter of the plurality of trading parameters which corresponds
to the given market data circle). See Appeal Br. 7 (arguing that steps (i)
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through (iii) “serve as conditions precedent” to “initiate a trade” at step (iv)).
Similar to the concepts of intermediated settlement in Alice and hedging
in Bilski, the concept of initiating a trade “is a fundamental economic
practice long prevalent in our system of commerce.” Alice, 573 U.S. at 216
(citations and internal quotation marks omitted); see also Trading Techs.
Int’l v. IBG LLC, 921 F.3d 1084, 1092 (Fed. Cir. 2019) (“Trading
Technologies II”) (agreeing with the Board that “placing an order based on
displayed market data information is a fundamental economic practice”
(citation omitted)). Accordingly, we agree with the Examiner that claim 1
recites a fundamental economic principal or practice, which is a subgrouping
of the certain methods of organizing human activity grouping of abstract
ideas. Final Act. 4; see also MPEP §§ 2106.04(a), 2106.04(a)(2)(II).
We also agree with the Examiner that claim 1 recites additional
abstract ideas, such as mental processes. See Final Act 2–4; MPEP
§ 2106.04(a)(2)(III). For example, steps (i) and (ii) relate to receiving and
displaying information, and step (iii) involves analyzing the collected
information and displaying certain results of the analysis. See Elec. Power
Grp., 830 F.3d at 1355 (“[M]erely selecting information, by content or
source, for collection analysis, and display does nothing significant to
differentiate a process from ordinary mental processes, whose implicit
expulsion from § 101 undergirds the information-based category of abstract
ideas”); Trading Techs. Int’l v. IBG LLC, 921 F.3d 1378, 1384 (Fed.
Cir. 2019) (“Trading Technologies III”) (holding that “providing a trader
with additional financial information to facilitate market trades [is] an
abstract idea”).
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Having concluded that claim 1 recites a judicial exception under
Step 2A, Prong One, we next consider whether the claim recites additional
elements that integrate the judicial exception into a practical application.
MPEP §§ 2106.04(II)(A), 2106.04(d). Here, claim 1 additionally recites: a
“processor”; “a memory that stores instructions which, when executed by the
processor, direct the at least one processor to” perform steps (i) through (iv);
“a display device”; “a graphical user interface”; and “a communication
network” that allows market data having “real time” price information to be
received in “real time.” However, the Specification describes these
elements, and the interaction there between, at a high level of generality, i.e.,
as generic computer components. See Spec. ¶¶ 22–26, 30.
There is no indication in the Specification that the operations recited
in claim 1 require any specialized computer hardware or other inventive
computer components, i.e., a particular machine, invoke any asserted
inventive programming, or that the claimed invention is implemented using
other than generic computer components to perform generic computer
functions. Contrary to Appellant’s suggestion (Appeal Br. 8, 10, 13),
claim 1 does not recite a particular machine or otherwise impart patent
eligibility to the claim merely because it recites a generic “processor” and
generic “memory” with instructions that, when executed by the processor,
direct the processor to perform the functions recited in claim 1. 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.”); see also MPEP §§ 2106.04(d), 2106.05(b).
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We also find no indication in the Specification that the claimed
invention as recited in claim 1 effects a transformation or reduction of a
particular article to a different state or thing. Id. §§ 2106.04(d), 2106.05(c).
Nor do we find anything of record that attributes an improvement in
technology and/or a technical field to the claimed invention or that otherwise
indicates that the claimed invention integrates the abstract idea into a
“practical application,” as that phrase is used in the 2019 Guidance. See
MPEP § 2106.04(d), 2210.04(d)(1), 2106.05(a). Therefore, we agree with
the Examiner that the additional elements do not meaningfully apply the
abstract idea and, thus, do not integrate the abstract idea into a practical
application.
Appellant argues that claim 1 does not recite a mental process because
the term “first display” is “a structural feature.” Appeal Br. 6. As an initial
matter, we disagree that claim 1 requires the claimed “first display” to be a
structural feature, as opposed to a graphical representation of data. For
example, Appellant’s Specification describes the first display (i.e.,
display 60) as a graphical representation of data generated by a graphical
user interface (“GUI”). See Spec. ¶¶ 19, 28. More specifically, the
Specification describes that display 60 “provides a graphical representation
of the probability that market data can satisfy a trader designated
requirement.” Spec. ¶ 19. The Specification further provides that a GUI
application “generates display 60 on display device 32” and “change[s]
display 60 in response to commands from interface devices 28 and/or trading
platform 14.” Id. ¶ 26; see also id. ¶¶ 15–17 (describing the graphical
representation of data provided by display 60), 32 (describing that radar
display 60 is generating by trading system 10 of Figure 1), Fig. 1. As the
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skilled artisan would appreciate, a graphical user interface can generate
graphical representations of data, but cannot generate a structural element.
However, even if the claimed “first display” were limited to a
structural element, “[t]hat purely mental processes can be unpatentable, even
when performed by a computer, was precisely the holding of the Supreme
Court in Gottschalk v. Benson.” CyberSource Corp. v. Retail Decisions,
Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011).
Appellant also argues that the Examiner erred in determining that
claim 1 recites a mental process because
the Examiner fails to establish that the limitation “move a display
of the market data circle from a first location . . . to a second
location . . . and that is the determined distance away from the
trader requirements indicia” can be performed in the human
mind, contrary to the Examiner’s assertion, much less moving a
display of a market data circle on a first display of a graphical
user interface.
Appeal Br. 6. Yet, “with the exception of generic computer-implemented
steps, there is nothing in the claims themselves that foreclose them from
being performed by a human, mentally or with pen and paper.” Intellectual
Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016).
For example, a human could use a pen and paper to display trader
requirements indicia (step (i)); the human could receive real time market
data (step (ii)); and then the human could perform, mentally or with the aid
of pen and paper, the first two calculations recited in step (iii)(a) (i.e.,
determine a probability and determine a distance). The claimed calculations
for determining a probability and determining a display distance based on
the probability are so broadly worded as to encompass any method for
determining probability and display distance, even logical reasoning that can
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be performed entirely in the mind. Next, at step (iii)(b), the human using
pen and paper could use pen and paper to create a new display, reflecting the
market data and the trader requirements indicia, separated by the calculated
distance. In this manner, the human could update the first display. See
CyberSource, 654 F.3d at 1372 (holding that unpatentable mental processes
include method steps that “can be performed in the human mind, or by a
human using a pen and paper”); see also MPEP § 2106.04(a)(2)(III)(B)
(explaining that “[t]he use of a physical aid (e.g., pencil and paper or a slide
rule) to help perform a mental step . . . does not negate the mental nature of
the limitation”).
Appellant argues that the Examiner’s determination that claim 1
recites a fundamental economic practice is flawed, because the Examiner
fails to establish that “determining whether trader requirements indicia is at a
position overlapped by a given market data circle is fundamental to
‘initiating a trade,’ much less automatically initiating a trade in real time
based on making such a determination.” Appeal Br. 6–7. Yet, “[t]he term
‘fundamental’ is not used in the sense of being ‘old’ or ‘well-known.’”
MPEP § 2106.04(a)(2)(II)(A); see also OIP Techs., Inc. v. Amazon.com,
Inc., 788 F.3d 1359, 1364 (Fed. Cir. 2015) (holding that a new method for
price optimization was a fundamental economic concept); Trading
Technologies II, 921 F.3d at 1092 (determining that a new computer based
method that recited sending an order by “selecting” and “moving” an order
icon to a location along a scaled axis of prices was a fundamental economic
practice). Here, claim 1 may well improve a method for initiating a trade by
performing steps (i) through (iv) to initiate a trade. However, the
improvement is to the abstract idea itself (i.e., a fundamental economic
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practice). See Trading Technologies II, 921 F.3d at 1092 (noting that “[t]he
fact that the claims add a degree of particularity as to how an order is placed
. . . does not impact our analysis at step one [of Alice]”).
To the extent Appellant argues that by initiating a trade
“automatically” and “in real time,” the claim is not directed to an abstract
idea (see Appeal Br. 6, 7, 9, 10, 14), Appellant’s argument is not persuasive.
Our reviewing court has held that relying on a computer to perform tasks
more quickly or more accurately is insufficient for patent eligibility. OIP
Techs., 788 F.3d at 1363.
Citing Trading Techs. Int’l, Inc. v. CQG, Inc., 675 Fed. Appx. 1001
(Fed. Cir. 2017) (“Trading Technologies I”), Appellant argues that the
Federal Circuit has “held that a user interface for computing device was
patent eligible.” Appeal Br. 7; see also id. at 14. In that case, however, the
claims at issue addressed a problem in electronic trading where an order for
a trader was executed at a different price than intended due to rapid market
movement. Trading Technologies I, 675 Fed. Appx. at 1002–03. In
particular, the graphical interface included a dynamic display for bids and
asks and a static display of prices corresponding to the bids and asks, and
paired orders with the static display of prices to prevent order entry at a
changed price. Id. at 1003. No comparable technological improvement is at
issue here.
Appellant contends that claim 1 is analogous to the claims at issue in
Trading Technologies I because it reduces a trader’s risk of missing a trade
by automatically initiating a trade in response to a given market data circle
and trading requirements indicia overlapping. Appeal Br. 14. Yet, “placing
an order based on displayed market information is a fundamental economic
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practice” (Trading Technologies II, 921 F.3d at 1092), and arranging
information to assist traders in processing information more quickly also is
abstract (id. at 1092–93). We do not see any improvement analogous to the
improved graphical user interface of Trading Technolgies I that prevents
order entry at a changed price.
Appellant argues that claim 1 recites an improved user interface that
provices an improvement to electronic trading. Appeal Br. 8–10. In
particular, Appellant underlines various language recited in claim 1 that
Appellant views as additional elements that integrate the abstract idea into a
practical application. For example, Appellant underlines the steps of
determining a display distance between a display of trader requirements
indicia and a display of the market data indicia (limitation (a)(2)); updating
the first display to move a display of the market data circle from a first
location to a second location that is the determined distance away (limitation
(a)(3)); and determine whether the trader requirements indicia is at a position
overlapped by a given market data circle (limitation (b)). Yet, like the
situations in both Trading Technologies II and III, these limitations pertain
to a purportedly new arrangement of information that assists traders in
processing information more quickly, not improving the way the computer
operates or solving any technological issue. See Trading Technologies II,
921 F.3d at 1093, Trading Technologies III, 921 F.3d at 1384. In particular,
arranging information, as recited in limitations (iii)(a)(2), (iii)(a)(3), and
(iii)(b) of claim 1, allows a trader to more readily predict whether market
data can satisfy the trader’s designated requirements, but it does not improve
the functioning of a computer, make it operate more efficiently, or solve any
technological problem. See Spec. ¶ 19 (describing that “radar display 60
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provides a graphical representation of the probability that market data can
satisfy a trader designated requirement, which allows trader 24 to more
readily predict whether market data can satisfy requirements designated by
trader 24”).
Appellant’s remaining arguments fail for similar reasons. Directing
our attention to paragraphs 5, 7, 8, 17, 26, 41, 45, and 52 of the
Specification, Appellant argues that claim 1 provides a graphical user
interface that improves the usability, efficiency, and dynamic real time
operation of an electronic trading system. Appeal Br. 11–13. Yet, each of
the paragraphs of the Specification cited by Appellant relate to how the
information is arranged for determining whether to initiate a trade. See, e.g.,
Spec. ¶ 17 (describing that the distance depicted on radar display 60 between
the market data circle and the trader requirements block “indicates the
probability that the market data can satisfy the trader designated
requirements,” and “[a]s the market data changes, the market data circle may
move to reflect the changes”).
Appellant asserts that the claims are similar to various claims held to
be patent eligible by the Federal Circuit; however, we fail to see any analogy
between claim 1 and any of the claims at issue in those cases. For example,
Appellant contends that claim 1, like the claims in Core Wireless provides
advantages over the prior art and improves efficiency of the electronic
trading system. Appeal Br. 14–15. Specifically, Appellant contends that
claim 1
improves the electronic trading system by allowing traders to
interact with a graphical user interface arranged in a particular
manner to quickly and efficiently obtain an understanding of the
probability that predefined trading requirements will be met
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based on relative distances between the market data circles and
the trading requriements indicia on a display.
Id. at 15. “This approach provides the trader a limited set of information to
make a determination, as well as reduces a likelihood of a trader missing a
trading opportunity that may otherwise occur in a fast moving network
environment.” Id. Yet, like the claims at issue in Trading Technologies II
and III, claim 1 pertains to helping a trader gain a market advantage, rather
than a technological invention. See Trading Techs. I at 1089–90; Trading
Techs. II at 1383. Specifically, claim 1 makes “the trader faster and more
efficient, not the computer.” Trading Techs. I at 1090; see also Trading
Techs. II at 1383.
In contrast, in Core Wireless, the court found that the claims recited a
specific improvement in computer technology — “an improved user
interface for electronic devices, particularly those with small
screens.” Core Wireless, 880 F.3d at 1363. Because small screens require
data and functionality to be divided into many layers or views, “prior art
interfaces required users to drill down through many layers to get to desired
data or functionality.” Id. (citation omitted). For example, a user would
locate and launch a required application, and then navigate within the
application to find data of interest. Id. The claims at issue
in Core Wireless improved the operation of the user interface by displaying
a menu listing one or more applications and an application summary
reachable from the menu where the application summary displayed a limited
list of data offered within one or more applications that are in an un-
launched state. Id. at 1359. When a user selected data from the limited list,
the unlaunched application offering the data would be launched, and the user
could view the data within the application. Id. In this way, the improved
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interface prevented a user from “paging through multiple screens of options”
to reach desired data or functionality. Id. at 1363. We find no analogous
improvement to a user interface recited in Appellant’s claim 1.
We also are not persuaded of Examiner error by Appellant’s argument
that claim 1 is “more than an attempt to monopolize a judicial exception.”
Appeal Br. 15. “[P]reemption may signal patent ineligible subject matter,
[but] the absence of complete preemption does not demonstrate patent
eligibility.” Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1379 (Fed. Cir. 2015).
We conclude, for the reasons outlined above, that claim 1 recites a
method of organizing human activity, i.e., an abstract idea, and that the
additional elements recited in the claim beyond the abstract idea are no more
than generic computer components used as tools to perform the recited
abstract idea. As such, they do not integrate the abstract idea into a practical
application. Accordingly, we agree with the Examiner that claim 1 is
directed to an abstract idea.
Step Two of the Mayo/Alice Framework (Guidance, Step 2B)
Having determined under step one of the Mayo/Alice framework that
claim 1 is directed to an abstract idea, we next consider under Step 2B of the
Guidance, the second step of the Mayo/Alice framework, whether claim 1
includes additional elements or a combination of elements that provides an
“inventive concept,” i.e., whether the additional elements amount to
“significantly more” than the judicial exception itself. MPEP § 2106.05(I).
Appellant asserts that claim 1 recites significantly more than the
abstract idea and also charges the Examiner with not complying with the
Federal Circuit’s decision in Berkheimer v. HP Inc., 881 F.3d 1360 (Fed.
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Cir. 2018). See Appeal Br. 15–18; see also Berkheimer, 881 F.3d at 1369
(“Whether something is well-understood, routine, and conventional to a
skilled artisan at the time of the patent is a factual determination.”).
Appellant does not apprise us of what “additional subject matter” is not
well-understood, routine, and conventional.
As described above, the only additional elements recited in claim 1
beyond the abstract idea are a “processor”; “a memory that stores
instructions which, when executed by the processor, direct the at least one
processor to” perform steps (i) through (iv); “a display device,” “a graphical
user interface,” and “a communication network” that allows market data
having “real time” price information to be received in “real time.” However,
the Specification describes these elements, and the interaction therebetween,
at a high level of generality, i.e., as generic computer components. See
Spec. ¶¶ 22–26, 30. Appellant asserts that the Specification does not include
an express statement that demonstrates the well-understood, conventional
nature of the additional elements. Appeal Br. 16. Yet, the Specification
clearly indicates that the additional elements are well known or
conventional. See MPEP § 2106.05(d) (explaining that in many instances,
the specification for the application indicates that additional elements are
well-known or conventional). For example, paragraph 24 of the
Specification provides that the claimed processor includes “any suitable
combination of hardware and/or software to perform the functions described
herein.” Likewise, the Specifciation describes memory as including “any
suitable combination of volatile and/or non-volatile memory that stores
and/or facilitates retrieval of information.” Spec. ¶ 25; see also id. at ¶¶ 22,
26, 30 (similarly describing the other additional elements as generic).
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To the extent that Appellant contends that other aspects of claim 1
(e.g., “display . . . trader requirements indicia” (limitation (i)); “determine,
based on the probability, a display distance” (limitation (iii)(a)(2)); “update
the first display” (limitation (iii)(a)(3)), are not well-understood, routine, or
conventional, Appellant’s argument is not persuasive. These limitations
recite the abstract idea itself and, thus, cannot establish patent eligibility
under Step 2B. “It has been clear since Alice that a claimed invention’s use
of the ineligible concept to which it is directed cannot supply the inventive
concept that renters the invention ‘significantly more’ than the ineligible
concept.” BSG Tech. v. BuySeasons, Inc., 899 F.3d 1281, 1290 (Fed. Cir.
2018).
Appellant asserts that “the absence of any art rejections further
indicates that the claims include additional subject matter that is not well-
understood, routine, conventional activity and thus an ‘inventive concept’
under Step 2B.” Appeal Br. 18. Yet to the extent Appellant maintains that
the claims are patent-eligible because the claimed subject matter is allegedly
novel and non-obvious, Appellant misapprehends the controlling precedent.
Although the second step 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, 573 U.S. at 217–18. 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 categories
of possibly patentable subject matter.”); Genetic Techs., 818 F.3d at 1376
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(“[U]nder the Mayo/Alice framework, a claim directed to a newly discovered
law of nature (or natural phenomenon or abstract idea) cannot rely on
the novelty of that discovery for the inventive concept necessary for
patent eligibility.”).
Therefore, Appellant does not persuade us of error in the Examiner’s
application of Step 2B. Because Appellant has not persuaded us that the
Examiner erred, we sustain the Examiner’s rejection under 35 U.S.C. § 101
of independent claim 1 and independent claims 22 and 23, which fall with
claim 1.
Dependent Claims 2–5, 7–10, and 12–21
Appellant argues that the Examiner has not provided a clear rationale
in support of the rejection of the dependent claims under 35 U.S.C. § 101,
because the Examiner does not address the recited language with
particularity. Appeal Br. 18–20. In particular, addressing dependent
claim 10, Appellant asserts that the Examiner does not mention the term
“concentric”; does not establish that the features of claim 10 are fundamental
economic practices; and does not point to any objective evidence that
displaying concentric two-dimensional distance lines relative to trader
requirements indicia in a manner that reflects different respective
probabilities of market data satisfying a trading parameter was well-
understood, routine, and conventional. Id. at 20. Addressing dependent
claims 17 and 18, Appellant argues that the Examiner “does not mention
‘probability value,’ let alone address the features of determining a distance
between the market data indicia and the trader requirements indicia utilizing
the techniques recited in claims 17 and 18.” Id. (citing Final Act. 2–8).
Besides pointing out what the claims recite, Appellant does not provide
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separate arguments for the remaining dependent claims. See 37 C.F.R.
§ 41.37(c)(1)(iv) (“A statement which merely points out what a claim recites
will not be considered an argument for separate patentability of the claim.”).
Here, the Examiner determined that the dependent claims “further
define the abstract idea that is present in their respective independent
claims.” Final Act. 6. Consistent with this determination, dependent claim
10 recites additional information contained in the first display (i.e., “a
plurality of concentric two-dimensional distance lines, each distance line
representing a particular distance from the trader requirements indicia such
that the plurality of distance lines represent a plurality of different distances
and a corresponding plurality of different probabilities”). Appellant does not
explain, and we do not see, how this particular arrangement of data,
considered individually and as an ordered combination, removes claim 10
from the realm of the abstract. Instead, claim 10, like independent claim 1
and the claims at issue in Trading Technologies III, focuses on providing
information to a trader in a way that helps the trader process information
more quickly, not improving computers or technology. Trading
Technologies III, 921 F.3d at 1384. Displaying a plurality of concentric
distance lines in the manner recited in claim 10 may well help a trader
“quickly and efficiently obtain an understanding of the probability that
predefined trading requirements will be met based on the relative distances
between the market data circles and the trading requirements indicia on the
display.” Appeal Br. 15. However, the improvement touted by Appellant
focuses on an improving a process that is the abstract idea itself, and not on
improving computers or technology. See Trading Technologies III, 921 F.3d
at 1384 (determining that “[t]he claims focused on providing information to
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trader in a way that helps them process information more quickly, not on
improving computers or technology”); see also id. at 1385 (“arranging
information along an axis does not improve the functioning of the computer,
make it operate more efficiently, or solve any technological problem”).
Claims 17 and 18 further specify how the distance is determined. But, like
the claims in Trading Technologies III, “the purported advance is ‘a process
of gathering and analyzing information of a specified content, then
displaying the results, and not any particular assertedly inventive technology
for performing those functions’” Id. at 1385 (quoting Electric Power Group
LLC v. Alstom S.A., 830 F.3d 1350, 1354 (Fed. Cir. 2016)).
Appellant does not persuade us that any of the additional recitations of
the dependent claims, considered individually and as an ordered
combination, remove any of the dependent claims from the realm of the
abstract. Therefore, we sustain the Examiner’s rejection of the dependent
claims under 35 U.S.C. § 101.

CONCLUSION
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Basis Affirmed Reversed
1–5, 7–10,
12–24
101 Eligibility 1–5, 7–
10, 12–24

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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