Lee M. Amaitis et al.

Patent Trials and Appeals Board

Oct 28, 2019

11076561 - (D) (P.T.A.B. Oct. 28, 2019)

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.
11/076,561 03/09/2005 Lee M. Amaitis 03-6152CIP2 6167
63710 7590 10/28/2019
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
MOSSER, ROBERT E
ART UNIT PAPER NUMBER
3715
NOTIFICATION DATE DELIVERY MODE
10/28/2019 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):
lkorovich@cantor.com
patentdocketing@cantor.com
phowe@cantor.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte LEE M. AMAITIS and JOSEPH M. ASHER
____________________

Appeal 2018-009056
Application 11/076,5611
Technology Center 3700
____________________

Before JOSEPH A. FISCHETTI, PHILIP J. HOFFMANN, and
TARA L. HUTCHINGS, Administrative Patent Judges.

HOFFMANN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s rejection of claims 4, 23–25, and 29–50. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
Appellant’s invention “relates . . . to a system and method for betting
on a subset of participants in an event according to multiple groups.”
Spec. 1, ll. 12–14. Below, we reproduce independent claim 4 as illustrative
of the appealed claims.

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 Cantor Index,
LLC. Appeal Br. 3.
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4. A method for managing bets on a gaming system
over a network with interfaces of computing devices, the method
comprising:
at a network interface of a computing device of a gaming
system, receiving, from a network interface of a computing
device of a bettor, data representing a combination group bet
from the bettor, the combination group bet having first and
second group bets for an event having a set of participants,
wherein:
the first group bet comprises a bet that any one
participant from among a first subset of the participants in
the event will win the event, and
the second group bet comprises a bet that any one
participant from among a second subset of the participants
in the event will win the event;
the participants in the first and second subsets left
open at the time that the bet is placed, the computing
device of the gaming system providing a data
representation to a display interface of the computing
device of the bettor of a definition by which participants
will be allocated to the subsets at a time after the bet is
placed, the two subsets to be disjoint from each other, the
payout amount for the combination group bet to be based
at least in part on the amounts bet on the participants, and
whether the winning participant is in one of the subsets,
and if so, which subset of participants includes the
winning participant; and
when a winner of the event is identified, by the computing
device of the gaming system, transforming data to calculate a
payout for the combination group bet, and fixing the payout
amounts in memory of the computing device of the gaming
system,
wherein an odds payout for at least one of the group bets
is fixed at the time, or substantially at the time, that the group bet
is placed;
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receiving, at the computing device of the gaming system,
via a betting system interface of a self-serving machine, an
electronic message including data representing payment
associated with the combination group bet, in response to
physical activation of payment entry at the self-service machine;
and
transmitting, from the computing device of the gaming
system, via the betting system interface of the self-serving
machine, an electronic command to cause dispense from self-
serving machine a printout of payment.

REJECTION
The Examiner rejects claims 4, 23–25, and 29–50 under 35 U.S.C.
§ 101 as reciting only patent-ineligible subject matter.

PRINCIPLES OF LAW CONCERNING 35 U.S.C. § 101
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101. The
Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit
exceptions, however: “[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) (citation omitted).
In determining whether a claim falls within an excluded category, the
Supreme Court’s two-step framework, described in Mayo and Alice, guides
us. See 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.” Id. 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
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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 that the courts 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 that the courts 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 rubber, smelting ores” (id. at 182 n.7
(quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and
manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94
U.S. 780, 785 (1876))).
In Diehr, although the claim at issue recited a mathematical formula,
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 187; 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.”).
Nonetheless, 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
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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. (quoting Mayo, 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.
2019 Revised Patent Subject Matter Eligibility Guidance
The U.S. Patent and Trademark Office recently published revised
guidance on the application of § 101. See 2019 Revised Patent Subject
Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”).
Under that 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 i) a fundamental economic
practice, or ii) managing personal behavior or relationships or
interactions between people, 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)).
A practical application “appl[ies], rel[ies] on, or use[s] the judicial exception
in a manner that imposes a meaningful limit on the judicial exception, such
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that the claim is more than a drafting effort designed to monopolize the
judicial exception.” Guidance at 54.
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 either:
(3) adds a specific limitation beyond the judicial exception
which is not “well-understood, routine, [or] conventional” in the
field (see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, and
conventional activities previously known to the industry,
specified at a high level of generality, to the judicial exception.
See generally Guidance.

ANALYSIS
Initially, we note that Appellant argues against the Examiner’s § 101
rejection of the claims as a group. See Appeal Br. 11–19. We choose
independent claim 4 for our analysis, and the remaining independent and
dependent claims stand or fall with claim 4. See 37 C.F.R. § 41.37
(c)(1)(iv). For the following reasons, we sustain the Examiner’s rejection of
the claims as patent-ineligible.
We determine that in accordance with point (1) of the Guidance
referenced above, independent claim 4 recites at least one judicial exception,
including an abstract idea. More specifically, as described in further detail,
the abstract idea includes certain methods of organizing human activity, such
as a fundamental economic practice.
As set forth above, claim 4 recites the following:
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4. A method for managing bets on a gaming system
over a network with interfaces of computing devices, the method
comprising:
at a network interface of a computing device of a gaming
system, receiving, from a network interface of a computing
device of a bettor, data representing a combination group bet
from the bettor, the combination group bet having first and
second group bets for an event having a set of participants,
wherein:
the first group bet comprises a bet that any one
participant from among a first subset of the participants in
the event will win the event, and
the second group bet comprises a bet that any one
participant from among a second subset of the participants
in the event will win the event;
the participants in the first and second subsets left
open at the time that the bet is placed, the computing
device of the gaming system providing a data
representation to a display interface of the computing
device of the bettor of a definition by which participants
will be allocated to the subsets at a time after the bet is
placed, the two subsets to be disjoint from each other, the
payout amount for the combination group bet to be based
at least in part on the amounts bet on the participants, and
whether the winning participant is in one of the subsets,
and if so, which subset of participants includes the
winning participant; and
when a winner of the event is identified, by the computing
device of the gaming system, transforming data to calculate a
payout for the combination group bet, and fixing the payout
amounts in memory of the computing device of the gaming
system,
wherein an odds payout for at least one of the group bets
is fixed at the time, or substantially at the time, that the group bet
is placed;
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receiving, at the computing device of the gaming system,
via a betting system interface of a self-serving machine, an
electronic message including data representing payment
associated with the combination group bet, in response to
physical activation of payment entry at the self-service machine;
and
transmitting, from the computing device of the gaming
system, via the betting system interface of the self-serving
machine, an electronic command to cause dispense from self-
serving machine a printout of payment.
Appeal Br., Claims App. (Claim 4). The claim’s preamble expressly states
that the method steps recited in the body of the claim are directed to a
method for managing bets on a gaming system over a network with
interfaces of computing devices. Id. Further, each of the steps in the claim’s
body are directed to receiving the bet and paying the winner. More
specifically, the claim recites “receiving, from a network interface of a
computing device of a bettor, data representing a combination group bet
from the bettor,” with further details related to the groups. Id. (emphases
added). Claim 4 further recites “when a winner of the event is identified, by
the computing device of the gaming system, transforming data to calculate a
payout for the combination group bet, and fixing the payout amounts in
memory of the computing device of the gaming system,” with further details
about the fixing of the payout amounts. Id. (emphases added). The
independent claim still further recites “receiving, at the computing device of
the gaming system, via a betting system interface of a self-serving machine,
an electronic message including data representing payment associated with
the combination group bet, in response to physical activation of payment
entry at the self-service machine,” and “transmitting, from the computing
device of the gaming system, via the betting system interface of the self-
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serving machine, an electronic command to cause dispense from self-serving
machine a printout of payment”; i.e., the direction of payment of the winner.
Id. (emphases added). Taking bets and paying winning bettors is a
fundamental economic practice, and, thus, an abstract idea. See MPEP
§ 2106.04(a)(2)(I)(A); Alice, 573 U.S. at 219–20 (“intermediated settlement”
is a fundamental economic practice, and, thus, an abstract idea); Bilski, 561
U.S. at 611 (“hedging” is a fundamental economic practice, which is an
abstract idea); In re Smith, 815 F.3d 816, 818–819 (Fed. Cir. 2016)
(“Applicants’ claimed ‘method of conducting a wagering game’ is drawn to
an abstract idea much like Alice’s method of exchanging financial
obligations and Bilski’s method of hedging risk.”).
In accordance with point (2) of the Guidance referenced above,
claim 4 does not recite any additional element that integrates the judicial
exception into a practical application—i.e., something that “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.” Guidance
at 54. The claim only generically recites the use of certain physical
hardware—“a gaming system,” “a network,” “computing devices,” a “self-
service(or -serving) machine”—and, thus, these components do not
meaningfully limit the claim. Further, in the Specification, Appellant does
not describe the claimed hardware in such a way as to indicate that the
hardware is anything other than generic. Thus, claim 4 does not affect an
improvement in any technology or technical field.
Therefore, claim 4 is directed to the above-discussed abstract idea,
and does not integrate the judicial exception into a practical application.
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In accordance with points (3) and (4) of the Guidance referenced
above, claim 4 fails to recite a specific limitation beyond the judicial
exception which is not well understood, routine, and conventional in the
field, but instead simply appends well-understood, routine, and conventional
activities previously known to the industry, specified at a high level of
generality, to the judicial exception. Taking the claim elements separately,
the claimed hardware, as well as the functions performed by the claimed
hardware, are purely conventional. Specifically, claim 4 uses known,
generic components to perform their known, basic functions. Although,
arguably, the data processed and displayed differs, the claim recites the
hardware only at a high level of generality. In other words, here the claim
recites only well-understood, routine, and conventional functions. See Elec.
Power Grp. v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016); see also
In re Katz, 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.”).
For the following reasons, when considered as an ordered
combination, claim 4’s hardware does not add anything that is not already
present when we consider the steps separately. The hardware remains the
same before, during, and after taking the bet and paying the winner. Thus,
the claim amounts to nothing significantly more than instructions to apply
the abstract idea with generic hardware, and does not improve the hardware.
Accordingly, the claim recitations are insufficient to transform the abstract
idea into a patent-eligible invention. See Alice, 573 U.S. at 225–26.
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We have considered all of Appellant’s arguments in the Briefs, but
Appellant does not persuade us of error. We now address certain arguments
below.
Appellant argues that the claims meet “the USPTO guidelines of May
4th 2016.” Appeal Br. 11; see also id. at 11–13. For the reasons set forth
above, however, the claims are ineligible under the case law as developed by
the courts.
Appellant argues that the claims are eligible for the same reasons (see
id. at 14–16) as the claims in Core Wireless Licensing S.A.R.L. v. LG Elecs.,
Inc., 880 F.3d 1356 (Fed. Cir. 2018). Core Wireless states, in relevant part:
Claim 1 of the ’476 patent requires “an application summary that
can be reached directly from the menu,” specifying a particular
manner by which the summary window must be accessed. The
claim further requires the application summary window list a
limited set of data, “each of the data in the list being selectable
to launch the respective application and enable the selected data
to be seen within the respective application.” This claim
limitation restrains the type of data that can be displayed in the
summary window. Finally, the claim recites that the summary
window “is displayed while the one or more applications are in
an un-launched state,” a requirement that the device applications
exist in a particular state. These limitations disclose a specific
manner of displaying a limited set of information to the user,
rather than using conventional user interface methods to display
a generic index on a computer.
Core Wireless, 880 F.3d at 1362–63. Appellant’s claim 4 does not recite an
improved user interface in accordance with Core Wireless. Core Wireless
had an interface that assembled a limited number of applications which
could then be launched from that interface, while Appellant’s claim 4 does
not.
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Appellant argues that the claims do not preempt all processes for
achieving the intended result. Appeal Br. 17. As Appellant’s state (see id.),
“[w]hile preemption may signal patent ineligible subject matter, the absence
of complete preemption does not demonstrate patent eligibility.” Ariosa
Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015);
see also OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63
(Fed. Cir. 2015) (“[T]hat the claims do not preempt all price optimization or
may be limited to price optimization in the e-commerce setting do not make
them any less abstract.”). Instead, “[w]here 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, 788 F.3d at 1379. Thus, the claims are not eligible for
patenting even if “the claimed recitations are very specific and do not cover
all possible approaches.” Appeal Br. 17 (emphasis omitted).
Appellant’s argue that the lack of prior art references indicate patent
eligibility. Id. at 18. We are not persuaded by this argument, as a subject
matter eligibility determination differs from novelty and obviousness
determinations.
Therefore, based on the foregoing, we sustain the Examiner’s § 101
rejection of independent claim 4. Inasmuch as the remaining claims under
appeal stand or fall with claim 4, we also sustain the rejection of claims 23–
25 and 29–50.

CONCLUSION
We AFFIRM the Examiner’s rejection of claims 4, 23–25, and 29–50
under 35 U.S.C. § 101.
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In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
4, 23–25,
29–50
101 4, 23–25,
29–50

Overall Outcome 4, 23–25,
29–50

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

AFFIRMED