Lawrence AUSUBEL et al.

Patent Trials and Appeals Board

Oct 20, 2020

2019006290 (P.T.A.B. Oct. 20, 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.
14/311,341 06/22/2014 Lawrence M. AUSUBEL 4853-103 9924
6449 7590 10/20/2020
ROTHWELL, FIGG, ERNST & MANBECK, P.C.
607 14TH STREET, N.W.
SUITE 800
WASHINGTON, DC 20005
EXAMINER
HAQ, NAEEM U
ART UNIT PAPER NUMBER
3625
NOTIFICATION DATE DELIVERY MODE
10/20/2020 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):
PTO-PAT-Email@rfem.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LAWRENCE M. AUSUBEL,
PETER C. CRAMTON, and WYNNE P. JONES

____________

Appeal 2019-006290
Application 14/311,341
Technology Center 3600

____________

Before BIBHU R. MOHANTY, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134 from the Examiner’s
final rejection of claims 1–54. We have jurisdiction under 35 U.S.C. § 6(b).
An oral hearing was held September 24, 2020.
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Efficient
Auctions LLC. (Appeal Br. 1.)
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CLAIMED SUBJECT MATTER
Appellant’s “invention relates to improving computer-implemented
auctions and, more particularly, to computer implementation of an auction in
which multiple types of items are auctioned together.” (Spec. ¶ 3.)
Claims 1, 19, and 37 are the independent claims on appeal. Claim 1 is
illustrative. It recites (paragraphing added):
1. A computer system useful in enabling a bidder in an
auction of two or more types of items to bid for a group of said
types of items, said group including a plurality of said types of
items, wherein a relation is maintained among prices for the
plurality of said types of items and bid-related information is
received from bidders, said system comprising:
means for maintaining a relation among the prices for the
plurality of types of items within said group; and
means for receiving bid-related information, including at
least an indicator of quantity for at least one of the plurality of
types of items within said group, from at least one of said bidders.

REJECTION
Claims 1–54 are rejected under 35 U.S.C. § 101 as directed to a
judicial exception without significantly more.

ANALYSIS
Independent claims 1, 19, and 37, and dependent claims 3, 9–14, 21,
27–32, 38, 39, and 45–50 are not separately argued. We select claim 1 as
representative. Independent claims 19 and 37, and dependent claims 3, 9–
14, 21, 27–32, 38, 39, and 45–50 will stand or fall with claim 1. See 37
C.F.R. § 41.37(c)(1)(iv).
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
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thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U.S.C. § 101. Section 101, however,
“contains an important implicit exception: Laws of nature, natural
phenomena, and abstract ideas are not patentable.” Alice Corp. Pty. Ltd. 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)).
Alice applies a two-step framework, earlier set out in Mayo
Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66
(2012), “for distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim patent-eligible
applications of those concepts.” Alice, 573 U.S. at 217.
Under the two-step framework, it must first be determined if “the
claims at issue are directed to a patent-ineligible concept.” Id. at 218. If the
claims are determined to be directed to a patent-ineligible concept, e.g., an
abstract idea, then the second step of the framework is applied to determine
if “the elements of the claim . . . contain[] an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-eligible application.”
Id. at 221 (citing Mayo, 566 U.S. at 72–73, 79).
With regard to step one of the Alice framework, we apply a “directed
to” two prong test to: 1) evaluate whether the claim recites a judicial
exception, and 2) if the claim recites a judicial exception, evaluate whether
the claim “appl[ies], rel[ies] on, or use[s] 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.” See USPTO, 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50, 54 (Jan. 7, 2019) (hereinafter “2019 Guidance”).
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With regard to claim 1, the Examiner determines that
[u]sing an algorithm or formula to represent a relation among the
prices of items is an abstract idea because it cover mathematical
concepts (mathematical relationships and formulas). The mere
nominal recitation of generic computer hardware does not take
the claim limitations out of the mathematical grouping. Thus the
claim 1 recites an abstract idea.

(Answer 4; see also Final Action 8.)
Appellant argues that “while the claims are clear that there is a
relation which is maintained among the prices, there is no specific relation
which is expressed in any claim. Accordingly, there is no formula expressed
in any rejected claim.” (Appeal Br. 8.) In short, Appellant argues that
claim 1 does not “recite category (a) subject matter, namely: ‘Mathematical
concepts––mathematical relationships, mathematical formulas or equations,
mathematical calculations’.” (Id. at 12.)
Under step one of the Alice framework, we “look at the ‘focus of the
claimed advance over the prior art’ to determine if the claim’s ‘character as a
whole’ is directed to excluded subject matter.” Affinity Labs of Texas, LLC
v. DIRECTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting Elec.
Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016)).
The “directed to” inquiry . . . cannot simply ask whether the
claims involve a patent-ineligible concept, because essentially
every routinely patent-eligible claim involving physical products
and actions involves a law of nature and/or natural phenomenon
. . . . Rather, the “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).

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Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016). In
other words, the first step of the Alice framework “asks whether the focus of
the claims is on the specific asserted improvement in [the relevant
technology] or, instead, on a process that qualifies as an ‘abstract idea’ for
which computers are invoked merely as a tool.” Id. at 1335–36; see also
2019 Guidance at 54–55.
The Specification provides evidence as to what the claimed invention
is directed. In this case, the Specification discloses that the “invention
relates to improving computer-implemented auctions and, more particularly,
to computer implementation of an auction in which multiple types of items
are auctioned together.” (Spec. ¶ 3.) Claim 1 provides further evidence.
Claim 1 recites a “system useful in enabling a bidder in an auction of two or
more types of items to bid for a group of said types of items,” “said system
comprising: means for maintaining a relation among the prices for the
plurality of types of items,” “and means for receiving bid-related
information.”
As an initial matter, we construe the claim terms “means for
maintaining a relation among the prices for the plurality of types of items
within said group” and “means for receiving bid-related information,
including at least an indicator of quantity for at least one of the plurality of
types of items within said group, from at least one of said bidders.”
“When a claim uses the term ‘means’ to describe a limitation, a
presumption inheres that the inventor used the term to invoke § 112, ¶6.”
Biomedino, LLC v. Waters Techs. Corp., 490 F.3d 946, 950 (Fed. Cir. 2007).
Here, both Appellant and the Examiner agree that the “means for
maintaining” and the “means for receiving” limitations are in means-plus
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function form and both agree that the limitations invoke the means-plus-
function claiming contemplated by § 112, sixth paragraph. (See Final
Action 5, Appeal Br. 11.) We agree.
Once it is concluded “that a claim limitation is a means-plus-function
limitation, two steps of claim construction remain: 1) the court must first
identify the function of the limitation; and 2) the court must then look to the
specification and identify the corresponding structure for that function.”
Biomedino, LLC, 490 F.3d at 950.
With regard to the claim term “means for maintaining a relation
among the prices for the plurality of types of items within said group,” the
function of the limitation is to maintain a relation among prices for the
plurality of types of items within a group. Claim 1 recites that this function
is a part of the computer system. The Specification discloses that “the
relationship or relation among the prices may . . . be an algorithm or a
formula” (Spec. ¶ 154), and “the relationship or relation among the prices
may involve a schedule” (id. ¶ 16). Appellant directs us to the flow diagram
shown in Figure 5a of Appellant’s application. (Appeal Br. 3.) The
Specification discloses that the flow diagram shown in Figure 5a may be
implemented using generic computer hardware. (Spec. ¶¶ 132–33; see also
Final Action 5.)
Applying a broadest reasonable interpretation, the term “means for
maintaining a relation among the prices” includes generic computer
hardware for performing an algorithm or formula to maintain a relation
among prices, such as that shown in Figure 5a, or may involve a schedule.
With regard to the claim term “means for receiving bid-related
information, including at least an indicator of quantity for at least one of the
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plurality of types of items within said group, from at least one of said
bidders,” the function of the limitation is to receive bid-related data.
Claim 1 recites that this function is a part of the computer system. The
Specification discloses that the bidding information processor transmits
auction information through the network to bidder terminals. (Spec. ¶ 149.)
Bidder terminals receive the information and bidders input bids through their
terminals. (Id.) The bidder terminals output that information to the network.
“The bidding information processor then receives the bids through its
network interface.” (Id.) The Specification further discloses that the
bidding information processor, network, and bidder terminals may be
implemented using generic computer hardware. (Spec. ¶¶ 132–33; see also
Final Action 5.)
Applying a broadest reasonable interpretation, the term “means for
receiving bid-related information” includes generic computer hardware for
performing a routine data receiving function.
In view of the above, we determine that claim 1 recites a “system
useful in enabling a bidder in an auction of two or more types of items to bid
for a group of said types of items,” “said system comprising:” generic
computer hardware for performing an algorithm or formula to maintain a
relation among prices, such as that shown in Figure 5a, or may involve a
schedule; and generic computer hardware for performing a routine data
receiving function.
In other words, claim 1 recites a computer system for an auction that
maintains a relation among prices and performs a routine data receiving
function. Appellant explains that
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[t]he specification describes conducting an auction from
inception to the point of determining an allocation of items to
bidders and determining related payment amounts, if an
allocation is feasible. This information is provided to users of
the computer system. This is nothing more than solving an
optimization problem. . . . [I]n other words, the invention
produces information useful in completing a transaction.

(Reply Br. 4.) This is in accord with the Examiner’s determination that the
focus of claim 1 is on “using an algorithm or formula to represent a relation
among the prices of items.” (See Answer 4.)
In short, claim 1 recites a mathematical relationship among prices,
i.e., maintaining a relation among prices, performing a routine computer
function (receiving data), and that the mathematical relationship and routine
computer function are used to “enabl[e] a bidder in an auction.”
Therefore, we agree with the Examiner that the focus of claim 1 is on
mathematical concepts, i.e., mathematical relationships. (See Answer 4; see
also 2019 Guidance at 52.) We also note the focus of claim 1 on
commercial or legal interactions, i.e., contracts and sales activities or
behaviors, which are at the heart of an auction, and fall within certain
methods of organizing human activity. (See 2019 Guidance at 52.)
The claim limitations do not recite any technological implementation
details. “The focus of the claim[] . . . is on selecting certain information,
[and] analyzing it using mathematical techniques . . . . That is all abstract.”
SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1167 (Fed. Cir. 2018). In
other words, claim 1 is “focused on providing information . . . , not on
improving computers or technology.” Trading Techs. Int’l, Inc. v. IBG LLC,
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921 F.3d 1378, 1384 (Fed. Cir. 2019).2 “Like Electric Power, the purported
advance ‘is a process of gathering and analyzing information of a specified
content . . . , and not any particular assertedly inventive technology for
performing those functions.’” Id. at 1385 (quoting Elec. Power Grp., 830
F.3d at 1354). “To be a patent-eligible improvement to computer
functionality, we have required the claims to be directed to an improvement
in the functionality of the computer or network platform itself.” Customedia
Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1364 (Fed. Cir. 2020).
“As many cases make clear, even if a process of collecting and
analyzing information is ‘limited to particular content’ or a particular
‘source,’ that limitation does not make the collection and analysis other than
abstract.” SAP Am., Inc., 898 F.3d 1168. The “character of [the]
information simply invokes a separate category of abstract ideas.” Id.
Moreover, the Federal Circuit has determined that claims to a method for

2 To the extent Appellant suggests that claim 1 is analogous to the claims in
Trading Technologies International, Inc. v. CQG, Inc., 675 F. App’x 1001
(Fed. Cir. 2017), we disagree. In the method claimed in Trading
Technologies, “bid and asked prices are displayed dynamically along the
static display, and the system pairs orders with the static display of prices
and prevents order entry at a changed price.” Trading Techs. Int’l, Inc., 675
F. App’x at 1003. The court determined that “[t]he claims require a specific,
structured graphical user interface paired with a prescribed functionality
directly related to the graphical user interface’s structure that is addressed to
and resolves a specifically identified problem in the prior state of the art” of
graphical user interface devices. Id. at 1004. We do not see how
Appellant’s claimed invention, for example, “pairs orders with the static
display of prices and prevents order entry at a changed price.” See id.
at 1003. Nor do we see how Appellant’s claimed invention “resolves a
specifically identified problem in the prior state of the art” of graphical user
interface devices. See id. at 1004.

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conducting an auction that simply “describe[] the solving of a mathematical
problem: determining the optimal combination of bids” are directed to
patent-ineligible subject matter. In re Schrader, 22 F.3d 290, 293 (Fed. Cir.
1994); see also Priceplay.com, Inc. v. AOL Advert., Inc., 83 F. Supp.3d, 577,
582 (D. Del. 2015), aff’d 627 F. App’x 925 (Fed. Cir. 2016).
We do not see how the recitation of a generic “computer system” (see
Spec. ¶¶ 132–33), even in conjunction with the recited functions, “ensure[s]
‘that the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” See Alice, 573 U.S. at 221 (second and third brackets in
original) (quoting Mayo, 566 U.S. at 77.) “[T]he mere recitation of a generic
computer cannot transform a patent-ineligible abstract idea into a patent-
eligible invention.” Id. at 223.
Nor do we find any indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Nor do we find anything of record that attributes an
improvement in computer technology or functionality to the claimed
invention or that otherwise indicates that the claimed invention “appl[ies],
rel[ies] on, or use[s] 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.” (See 2019
Guidance at 54–55.)
Thus, under prong one of the two prong test in the 2019 Guidance,
claim 1 recites an abstract idea; and, under prong two, additional elements in
claim 1 do not “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.”
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(See 2019 Guidance at 54.) As such, under step one of the Alice framework,
the claim is directed to an abstract idea, and we move to step two.
Step two of the Alice framework has been described “as 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.’” Alice, 573 U.S.
at 217–18 (brackets in original) (quoting Mayo, 566 U.S. at 72–73). Under
step two, we examine, inter alia, whether a claim element or combination of
elements “[a]dds 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 Guidance
at 56.)
Taking the claim elements separately, we ask whether the limitations
of analyzing information and receiving information are well-understood,
routine, and conventional.
Analyzing and receiving information are routine and conventional
functions for a computer system and were previously known to the industry.
See Elec. Power Grp., 830 F.3d at 1356 (The claims “do not include any
requirement for performing the claimed functions of gathering, analyzing,
and displaying in real time by use of anything but entirely conventional,
generic technology. The claims therefore do not state an arguably inventive
concept . . . .”), In re Katz Interactive Call Processing Patent Litig., 639
F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction
of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can
be achieved by any general purpose computer without special
programming.”).
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Considered as an ordered combination, the generic computer system
of Appellant’s claimed invention adds nothing that is not already present
when the limitations are considered separately. For example, claim 1 does
not, as discussed above, purport to improve the functioning of the computer
system itself. Nor does it effect an improvement in any other technology or
technical field. Instead, claim 1 amounts to nothing significantly more than
an instruction to apply the abstract idea using a generic computer system
performing routine computer functions. That is not enough to transform an
abstract idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
Nonetheless, Appellant argues that “even if maintaining a relation
among prices was considered a judicial exception to be protected against
monopolization, the rejected claims pose no threat.” (Appeal Br. 18.) We
do not find this argument persuasive. Monopolization, i.e., preemption, is
not a separate test.
“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.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015).
In other words, “preemption may signal patent ineligible subject matter,
[but] the absence of complete preemption does not demonstrate patent
eligibility.” Id.
Appellant also argues “that the only practical way to implement
modern auctions, or auctions within the scope of the invention, lies with a
computer. Hence, the improvement which solves the problems described in
Ausubel Dec. ¶ 11-15 are improvements in computer technology.” (Appeal
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Br. 19 (citing DECLARATION UNDER 37 CFR §1.132, dated
April 29, 2018 (hereinafter “Declaration” or “Decl.”)).)
The Declaration states that “[c]omputer systems provide the only
practical way for the exact intended information to be disclosed to the exact
intended parties” (Decl. ¶ 14), and that “the only practical way of
implementing my invention . . . necessarily requires a computer. As such,
improvements made by my invention . . . involve improvements in computer
technology” (id. ¶ 15). We do not find this argument persuasive.
The claimed invention uses a computer system to automate an
auction-related process. However, the use of a computer to perform tasks
more quickly or more accurately is not sufficient to render a claim eligible.
See OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir.
2015) (“[R]elying on a computer to perform routine tasks more quickly or
more accurately is insufficient to render a claim patent eligible.”),
Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
1367 (Fed. Cir. 2015) (“[C]laiming the improved speed or efficiency
inherent with applying the abstract idea on a computer [does not] provide a
sufficient inventive concept.”).
In cases involving software innovations, such as we have here, the
inquiry as to whether the claims are directed to an abstract idea “often turns
on whether the claims focus on ‘the specific asserted improvement in
computer capabilities ... or, instead, on a process that qualifies as an
“abstract idea” for which computers are invoked merely as a tool.’” Finjan,
Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018) (quoting
Enfish, LLC, 822 F.3d at 1335–36). In view of the above, we determine that
the computer system here is invoked merely as a tool.
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We are not persuaded that the Examiner erred in rejecting claim 1.

The clock auction claims
Appellant argues that dependent claims 2, 4, 6, 16–18, 20, 22, 34–36,
40, 42, 44, and 52–54 “recite that the claimed bidding occurs in a clock
auction.” (Appeal Br. 13.)3 The Examiner determines that a clock auction
simply “refers to a specific way of carrying out an auction” and that this
“relates to managing transactions between people (i.e. organizing human
activity).” (Answer 4–5 (citing Spec. ¶¶ 147–148).)4
Appellant argues that the clock auction claims “do not represent a
transaction – at most the claimed subject matter is only a portion of the

3 The Examiner determined that “[c]laims 2, 4, 16, 20, 22, 34, 38, 40, and 52
are directed to a ‘clock auction.’” (Final Action 8.) Based on our review,
claims 2, 4, 6, 16–18, 20, 22, 34–36, 38, 40, 42, 44, and 52–54 recite a clock
auction. To the extent the “clock auction” claims are argued together (see
Appeal Br. 13–16), we select claim 2 as representative, and claims 4, 16, 20,
22, 34, 38, 40, and 52 will stand or fall with claim 2. See 37 C.F.R.
§ 41.37(c)(1)(iv).
4 The Specification discloses:
A clock auction is a dynamic auction procedure whereby:
the auctioneer announces the current prices to bidders; the
bidders respond with current bids; the auctioneer determines
whether the auction should continue based on the bidding
history; the auctioneer updates the current prices based on the
bidding history and the process repeats, if it is determined that
the auction should continue; and the auctioneer allocates the
items among the bidders and assesses payments among the
bidders based on the bidding history, if it is determined that the
auction should not continue.
(Spec. ¶ 147.) In view of this disclosure, we agree with the Examiner that a
clock auction is a specific manner for carrying out an auction. (See Answer
4–5; see also Final Action 8.)
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apparatus required to produce a transaction – a transaction would require
some additional apparatus and/or steps to enable a transaction transferring
items in the auction from one party to another.” (Appeal Br. 13.) We do not
find Appellant’s argument persuasive.
Representative claim 2 recites “[a] system as recited in claim 1 in
which the auction is a clock auction and the receiving of bid-related
information occurs two or more times from the same bidder.”
The 2019 Guidance designates commercial or legal interactions, and
sales activities or behaviors, as certain methods of organizing human
activities, i.e., abstract ideas. (See 2019 Guidance at 52.) While we agree
that claim 2 does not recite a complete transaction transferring items from
one party to another, claim 2 recites commercial interactions, and sales
activities or behaviors by providing bid-related information to a bidder in an
auction. Appellant’s argument is that because additional limitations to
create a complete transaction are not recited, the claim cannot be directed to
an abstract idea. But adding limitations to recite a complete transaction
would only serve to narrow the claim. Appellant does not persuasively
argue how a broad claim assertedly directed to patent-eligible subject matter
could be narrowed to be directed to patent-ineligible subject matter.
In view of the above, we determine that under prong one of the two
prong test in the 2019 Guidance, claim 2 recites an abstract idea; and, for the
reasons discussed above with regard to claim 1, under prong two, additional
elements in claim 2 do not “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.” (See 2019 Guidance at 54.) As such, under step one of the Alice
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framework, the claim is directed to an abstract idea. And under step two, for
the reasons discussed above, we determine that the elements of the claim do
not contain an inventive concept sufficient to transform the abstract idea into
a patent-eligible claim.
We are not persuaded that the Examiner erred in rejecting claim 2.

The allocation determination claims
Appellant argues that dependent claims 5–8, 16–18, 23–26, 41–44,
and 52–54 “recite determining an allocation.” (Appeal Br. 16.)5 Appellant
argues that the claims do not recite a fundamental economic activity at least
because “economic activity requires some kind of transaction.” (Id.)
Appellant also argues that “‘[f]undamental’ requires an additional
characteristic, such as old and well established or at least widely practiced.”
(Id. at 17.)
The Examiner determines that the allocation determination claims are
directed to a computer-implemented auction which “is an abstract idea
because it covers a method of organizing a human activity (fundamental
economic principle).” (Answer 5–6.)

5 The Examiner determined that “[c]laims 5–8, 23–26, and 41–44 recite
processing the bid-related information received from bidders to determine an
allocation of the items.” (Final Action 9.) Based on our review, claims 5–8,
16–18, 23–26, 34–36, 41–44, and 52–54 recite allocating items. To the
extent the “allocation” claims are argued together (see Appeal Br. 16–17),
we select claim 5 as representative, and claims 6–8, 16–18, 23–26, 34–36,
41–44, and 52–54 will stand or fall with claim 5. See 37 C.F.R.
§ 41.37(c)(1)(iv).
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Representative claim 5 recites “[a] system as recited in claim 1 which
further comprises means for processing the bid-related information received
from bidders to determine an allocation of the items.”
With regard to the claim term “means for processing the bid-related
information received from bidders to determine an allocation of the items,”
we see no reason to disturb the presumption that this limitation invokes the
means-plus-function claiming contemplated by § 112, sixth paragraph.
The function of this limitation is to process received bid-related
information and determine an allocation of items. Further, claim 1, from
which claim 5 depends, recites that this function is a part of the computer
system. The Specification discloses that “Figure 8c is a flow diagram of a
subprocess of step 118 of Figure 4. It illustrates an exemplary process by
which a computer determines final allocations and payments.” (Spec. ¶ 177;
see also Appeal Br. 4.) The Specification further discloses that the flow
diagrams shown in Figures 4 and 8c may be implemented using generic
computer hardware. (See Spec. ¶¶ 130, 132–33.)
Applying a broadest reasonable interpretation, the term “means for
processing the bid-related information received from bidders to determine an
allocation of the items” includes generic computer hardware for performing
an algorithm or formula to process bid-related information received from
bidders to determine an allocation of items, such as that shown in Figures 4
and 8c.
As discussed above with regard to claim 2, the 2019 Guidance
designates commercial or legal interactions and sales activities or behaviors
as certain methods of organizing human activities, i.e., abstract ideas. (See
2019 Guidance at 52.) As with claim 2, we agree with Appellant that
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claim 5 does not recite a complete transaction transferring items from one
party to another. (See Appeal Br. 16–17.) Rather, claim 5 recites
commercial interactions, and sales activities or behaviors by providing bid-
related information to a bidder in an auction. Appellant’s argument is that
because additional limitations to create a complete transaction are not
recited, the claim cannot be directed to an abstract idea. But adding
limitations to recite a complete transaction would only serve to narrow the
claim. Appellant does not persuasively argue how a broad claim assertedly
directed to patent-eligible subject matter could be narrowed to be directed to
patent-ineligible subject matter. Nor are we persuaded that determining how
to allocate goods among buyers/bidders is not a fundamental economic
activity.
In view of the above, we determine that under prong one of the two
prong test in the 2019 Guidance, claim 5 recites an abstract idea; and, for the
reasons discussed above with regard to claim 1, under prong two, additional
elements in claim 5 do not “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.” (See 2019 Guidance at 54.) As such, under step one of the Alice
framework, the claim is directed to an abstract idea. And under step two, for
the reasons discussed above, we determine that the elements of the claim do
not contain an inventive concept sufficient to transform the abstract idea into
a patent-eligible claim.
We are not persuaded that the Examiner erred in rejecting claim 5.
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The contract claims
Appellant argues that dependent claims 15–18, 33–36, and 51–54
recite contracts for the provision of a commodity and are not abstract.
(Appeal Br. 17–18.)6
Representative claim 15 recites “[a] system as recited in claim 1
wherein the plurality of types of items are contracts for provision of a
commodity covering different time periods, wherein the time periods of at
least some of the contracts have at least some overlap.”
The Examiner determines that claim 15 is directed to “an abstract idea
because it is similar to a ‘fundamental economic activity’ and a ‘method of
organizing human activity.’” (Answer 9–10.)
Claim 15 narrows claim 1 by describing the types of items in the
auction, i.e., contracts for the provision of a commodity. For the reasons
discussed above with regard to claim 1, we determine that the focus of
claim 15 is on commercial or legal interactions, i.e., contracts and sales
activities or behaviors, which are at the heart of an auction, regardless of the
items being auctioned. And the 2019 Guidance designates commercial or
legal interactions, and sales activities or behaviors, as certain methods of
organizing human activities, i.e., abstract ideas. (See 2019 Guidance at 52.)

6 The Examiner determined that “[c]laims 15, 16, 33, 34, 51, and 52 recite
that the items are contracts for provision of a commodity.” (Final Action 9.)
Based on our review, we agree with Appellant that claims 15–18, 33–36, and
51–54 recite that the items are contracts for the provision of a commodity.
To the extent the “commodity” claims are argued together (see Appeal
Br. 17–18), we select claim 15 as representative, and claims 16–18, 33–36,
and 51–54 will stand or fall with claim 15. See 37 C.F.R. § 41.37(c)(1)(iv).
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Therefore, for the reasons discussed above, we determine that under
prong one of the two prong test in the 2019 Guidance, claim 15 recites an
abstract idea; and under prong two, additional elements in claim 15 do not
“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.” (See 2019
Guidance at 54.) As such, under step one of the Alice framework, the claim
is directed to an abstract idea. And under step two, for the reasons discussed
above, we determine that the elements of the claim do not contain an
inventive concept sufficient to transform the abstract idea into a patent-
eligible claim.
We are not persuaded that the Examiner erred in rejecting claim 15.

CONCLUSION
The Examiner’s rejection of claims 1–54 under 35 U.S.C. § 101 is
affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–54 101 Eligibility 1–54

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