Richard K. Macwilliams et al.

Patent Trials and Appeals Board

Oct 3, 2019

12703073 - (D) (P.T.A.B. Oct. 3, 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.
12/703,073 02/09/2010 Richard K. MacWILLIAMS 2904.0020000 3337
7590 10/03/2019
eBond Advisors LLC
16 York Road
Larchmont, NY 10538
EXAMINER
BARTLEY, KENNETH
ART UNIT PAPER NUMBER
3693
MAIL DATE DELIVERY MODE
10/03/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD K. MACWILLIAMS and
JOHN ANDREW MCQUOWN
____________

Appeal 2017-0105481
Application 12/703,0732
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and
MATTHEW S. MEYERS, Administrative Patent Judges.

MEYERS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellants appeal under 35 U.S.C. § 134(a) claims 1, 3–9, 11–17, and
22–29. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision references Appellants’ Appeal Brief (“Appeal Br.,” filed
March 22, 2017), Reply Brief (“Reply Br.,” filed August 7, 2017), and the
Examiner’s Answer (“Ans.,” mailed June 5, 2017) and Final Office Action
(“Final Act.,” mailed May 20, 2016).
2 Appellants identify “eBond Advisors LLC,” as the real party in interest
(Appeal Br. 3).
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CLAIMED INVENTION
Appellants’ claims “relate generally to investment vehicles, and, more
particularly, to bonds and credit default swaps” (Spec. ¶ 1).
Claims 1, 9, and 17 are the independent claims on appeal. Claim 1,
reproduced below with bracketed notations added, is illustrative of the
claimed subject matter:
1. A method comprising:
[a] determining, by one or more computing devices, a par
amount for an exchangeable bond instrument, the exchangeable
bond instrument comprising a bond indenture specifying
requirements for exchanging the exchangeable bond instrument
for an enhanced bond, wherein the enhanced bond has a claim on
a credit default swap contract as specified by the bond indenture;
[b] calculating, by the one or more computing devices, a
price for the enhanced bond based on the par amount of the
exchangeable bond;
[c] calculating, by the one or more computing devices, a
price for the exchangeable bond based on the price of the
enhanced bond and a total cost of the credit default swap
contract, wherein the total cost of the credit default swap contract
includes all future coupon payments on the credit default swap;
[d] calculating, by the one or more computing devices, a
rate of exchange for exchanging the exchangeable bond for the
enhanced bond based on the total cost of the credit default swap
contract as specified by the bond indenture;
[e] publishing, by the one or more computing devices, the
rate of exchange; and
[f] exchanging the exchangeable bond for the enhanced
bond by:
[f.1] receiving the exchangeable bond and the credit
default swap contract, plus a cash amount based on the rate
of exchange; and
[f.2] converting the exchangeable bond to the
enhanced bond.
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REJECTION
Claims 1, 3–9, 11–17, and 22–29 are rejected under 35 U.S.C. § 101
as directed to a judicial exception without significantly more.
ANALYSIS
Patent-Ineligible Subject Matter
Under 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. However, the Supreme Court has long interpreted
35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural
phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS
Bank Int’l, 573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category, we
are guided by the Supreme Court’s two-step framework, described in Mayo
and Alice. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework,
we first determine what concept the claim is “directed to.” See 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 Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4
in petitioners’ application explain the basic concept of hedging, or protecting
against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and
mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts
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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, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 U.S. at 176; see also id. at 191 (“We
view respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”). Having
said that, the Supreme Court also indicated that a claim “seeking patent
protection for that formula in the abstract . . . is not accorded the protection
of our patent laws, . . . and this principle cannot be circumvented by
attempting to limit the use of the formula to a particular technological
environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now
commonplace that an application of a law of nature or mathematical formula
to a known structure or process may well be deserving of patent
protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A
claim that recites an abstract idea must include ‘additional features’ to
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ensure ‘that the [claim] is more than a drafting effort designed to
monopolize the [abstract idea].’” Id. (alterations in original) (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.
The PTO recently published revised guidance on the application of
§ 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“2019 Revised Guidance”). Under 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 a fundamental economic practice, or mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application, i.e., that “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 Revised Guidance, 84 Fed. Reg. at 53; see
also MPEP § 2106.05(a)–(c), (e)–(h).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that is not
“well-understood, routine, conventional” in the field (see MPEP
§ 2106.05(d)); or
(4) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception.
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See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Appellants argue claims 1, 3, 5–9, 11, 13–17, and 22–27 as a group
(see Appeal Br. 8–20; see also Reply Br. 2–10). We select independent
claim 1 as representative. Claims 3, 5–9, 11, 13–17, and 22–27 stand or fall
with independent claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
With regard to the first step of the Mayo/Alice framework, the
Examiner states that claims 1, 3–9, 11–17, and 22–29 recite “a series of
steps instructing how to exchange bonds for an enhanced bond” which the
Examiner considers to be “a fundamental economic practice and thus an
abstract idea” (Final Act. 6) at least because “[b]onds are concepts related to
the economy and commerce and represent obligations between parties” (id.
at 7).
In response, Appellants first argue that the Examiner’s rejection is
improper because “the Examiner provides no reasons or evidence to support
that the claims of the instant application, or the purported abstract idea,
amount to a ‘foundational or basic’ concept. Therefore, the Office has not
met its prima facie burden.” (Reply Br. 2–5). We cannot agree.
Under the first prong of step 2A of the 2019 Revised Guidance, we
first determine if the claims recite an abstract idea. In this regard, the
Specification is titled “SYSTEMS, METHODS, AND COMPUTER
PROGRAM PRODUCTS FOR CREATION AND TRADING OF
ENHANCED BONDS,” and relates “generally to investment vehicles, and,
more particularly, to bonds and credit default swaps” (Spec. ¶ 1). The
Specification describes that “[t]he current market structure . . . makes it
difficult for investors to purchase bonds of a particular issuer at the precise
default risk they desire” (id. ¶ 6) and suffers from “the high transaction costs
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involved with buying and trading bonds” (id. ¶ 7). The Specification
identifies that “[c]redit default swaps (‘CDS’) are a type of derivative
investment that allow one party to transfer the default risk of an asset to
another party” (id. ¶ 25), but notes several drawbacks with traditional CDS
related to multiplicity of transactions and associated costs (see, e.g., Spec.
¶¶ 26–28). To address these drawbacks, the present invention discloses “a
new type of investment termed an enhanced bond (or “eBond”) is created
that combines corporate bonds with CDS contracts for those same corporate
bonds” (id. ¶ 29), and thus, provides investors with the ability “to purchase
bonds with a specific desired risk regardless of issuer and provide a
mechanism for dealers to significantly reduce transaction costs compared to
those available today” (id. ¶ 8; cf. Ans. 4).
Taking independent claim 1 as representative, the claimed subject
matter recites “[a] method” including steps for “determining . . . a par
amount for an exchangeable bond instrument, the exchangeable bond
instrument comprising a bond indenture specifying requirements for
exchanging the exchangeable bond instrument for an enhanced bond,
wherein the enhanced bond has a claim on a credit default swap contract as
specified by the bond indenture,” “calculating . . . a price for the enhanced
bond based on the par amount of the exchangeable bond,” “calculating . . . a
price for the exchangeable bond based on the price of the enhanced bond and
a total cost of the credit default swap contract, wherein the total cost of the
credit default swap contract includes all future coupon payments on the
credit default swap,” “calculating . . . a rate of exchange for exchanging
the exchangeable bond for the enhanced bond based on the total cost of
the credit default swap contract as specified by the bond indenture,”
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“publishing . . . the rate of exchange,” and “exchanging the exchangeable
bond for the enhanced bond by: receiving the exchangeable bond and the
credit default swap contract, plus a cash amount based on the rate of
exchange; and “converting the exchangeable bond to the enhanced bond.”
Understood in light of the Specification, we agree with the Examiner
that independent claim 1 broadly recites the “steps of determining a par
amount for an exchangeable bond, calculating a price for an enhanced and
exchangeable bond, calculating a rate of exchange for exchanging the bonds,
and publishing the rate of exchange involve routine and conventional use of
a computer” (Ans. 14), and as such, directed broadly to “a series of steps
instructing how to exchange bonds for an enhanced bond” (Final Act. 6).
We also agree with the Examiner that “[a] bond instrument (or an
exchangeable bond instrument) by itself is a contract and trading such
instruments is abstract and as claimed a fundamental economic practice”
(Ans. 6). Therefore, when viewed through the lens of the 2019 Revised
Guidance, the Examiner’s analysis depicts the claimed subject matter as
being directed to ineligible subject matter which may be categorized as one
of the ineligible “methods of organizing human activity” that include
“fundamental economic principles or practices (including hedging,
insurance, mitigating risk)” and “commercial or legal interactions (including
agreements in the form of contracts; legal obligations; advertising,
marketing or sales activities or behaviors; business relations),” and thus an
abstract idea. See 2019 Revised Guidance, 84 Fed. Reg. at 52.
Having concluded that claim 1 recites a judicial exception, i.e., an
abstract idea, we turn to the second prong of step 2A of the 2019 Revised
Guidance and determine whether the claims recite a practical application of
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the recited judicial exception. Here we look to see if, for example, (i) any
additional elements of the claims reflects an improvement in the functioning
of a computer or to another technological field, (ii) an application of the
judicial exception with, or by use of, a particular machine, (iii) a
transformation or reduction of a particular article to a different state or thing,
or (iv) a use of the judicial exception in some other meaningful way beyond
generally linking the use of the judicial exception to a particular
technological environment. See 2019 Revised Guidance, 84 Fed. Reg. at 55;
See also MPEP § 2106.05(a)–(c), (e)–(h).
Appellants argue that the present claims are similar to the patent-
eligible claims in McRO, Inc. v. Bandai Namco Games Am., Inc., 837 F.3d
1299 (Fed. Cir. 2016), and patent-eligible because they “provide a specific
technique enabling a market participant to establish a particular credit-
enhanced investment position through the use of an unconventional
exchange process and a novel enhanced security” (Appeal Br. 12–14; see
also Reply Br. 5–6). However, independent claim 1, unlike the claims found
non-abstract in prior cases, uses generic computer technology to process
(i.e., determine, calculate) publish, and exchange data (see Spec. ¶¶ 80–86),
and does not recite an improvement to a particular computer technology.
See, e.g., McRO, 837 F.3d at 1314–15 (finding claims not abstract because
they “focused on a specific asserted improvement in computer animation”).
Appellants further argue that “the claimed process sets forth specific
steps intended to simplify the requirements of the investor to establish a
particular position and reduce risks and administration typically associated
with CDS contracts” (Appeal Br. 15), and as such, “[s]imilar to the structure
of the rules in McRO, the structure of the enhanced security and various
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exchange requirements recited in the claims represents a specific
implementation not demonstrated as that which a past market participant
would likely have utilized to establish her position” (id. citing McRO, 837
F.3d at 1314; see also Appeal Br. 18–19). We cannot agree.
In McRO, the Federal Circuit premised its determination that the
claims were patent-eligible, not merely on the specificity of the claimed
animation scheme, but rather on the fact that the claims, when considered as
a whole, were directed to a technological improvement over the existing,
manual 3-D animation techniques and used limited rules in a process
specifically designed to achieve an improved technological result in
conventional industry practice. We are not persuaded that a comparable
situation is presented here. As our reviewing court has made clear, “relying
on a computer to perform routine tasks more quickly or more accurately is
insufficient to render a claim patent eligible.” OIP Techs., Inc. v.
Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015).
We further note that there is a fundamental difference between
technological or computer functionality improvements, on the one hand, and
uses of existing computers as tools to perform a particular task, on the other.
Here, the Specification discloses that “the methods illustrated by flowcharts
300 of FIG. 3, 400 of FIG. 4, 500 of FIG. 5, and 600 of FIG. 6, can be
implemented in system 700” (Spec. ¶ 80; see also id. ¶ 81 (stating
“[c]omputer system 700 includes one or more processors, such as processor
704. Processor 704 can be a special purpose or a general purpose
processor.”)). Indeed, the Federal Circuit applied this distinction in Enfish,
LLC v. Microsoft Corp., 822 F.3d 1327, 1335–36 (Fed. Cir. 2016) in
rejecting a § 101 challenge at the step one stage of the Mayo/Alice analysis
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because the claims at issue focused on a specific type of data structure, i.e., a
self-referential table for a computer database, designed to improve the way a
computer carries out its basic functions of storing and retrieving data, and
not on asserted advances in uses to which existing computer capabilities
could be put. Id. at 1335–36.
We also find no indication in the Specification that the claimed
invention effects a transformation or reduction of a particular article to a
different state or thing. Here, Appellants argue
the claims recite a specific process using a new investment
construct, which requires far more than implementing
conventional mental steps on a generic computer. For example,
the recited process of “exchanging” and “converting” in
independent claim 1 involves an actual transformation of
financial instruments according to provisions set forth in the
bond indenture of the exchangeable bond (“a bond indenture
specifying requirements for exchanging the exchangeable bond
instrument for the enhanced bond instrument”).
Appeal Br. 18–19 (citing Spec. ¶¶ 33, 43, 61, 73). However, any alleged
transformation due to the “exchanging” and “converting” steps recited by
independent claim 1 and dependent claim 28 are, at best, merely the
manipulation of data, which is not sufficient to meet the transformation
prong under 35 U.S.C. § 101. See Gottschalk v. Benson, 409 U.S. 63, 71–72
(1972) (a computer based algorithm that merely transforms data from one
form to another is not patent-eligible).
Appellants also argue that the present claims are not directed to a
fundamental economic practice because “the claims of the instant
application allow others to perform exchanges of securities, including bonds
for enhanced bonds, without infringing upon the claims” (Appeal Br. 14–16;
Reply Br. 7–8), and as such, the present “claims do not prevent an exchange
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of a bond for an asset-backed security backed by the bond and an
enhancement product (e.g., a CDS)” (Appeal Br. 16). However, Appellants’
preemption argument does not alter our § 101 analysis. Preemption
concerns are fully addressed and made moot where a patent’s claims are
deemed to disclose patent ineligible subject matter under the two-part
framework described in Mayo and Alice. Ariosa Diagnostics, Inc. v.
Sequenom, Inc., 788 F.3d 1371, 1379 (Fed. Cir. 2015). “While preemption
may signal patent ineligible matter, the absence of complete preemption
does not demonstrate patent eligibility.” Id.
Turning to Step 2B of the 2019 Revised Guidance, we determine
whether the additional elements (1) add a specific limitation or combination
of limitations that is not well-understood, routine, and conventional activity
in the field, which is indicative that an inventive concept may be present or
(2) simply appends well-understood, routine, conventional activities
previously known to the industry, specified at a high level of generality, to
the judicial exception, which is indicative that an inventive concept may not
be present. See 2019 Revised Guidance, 84 Fed. Reg. at 56.
Addressing the second step of the Mayo/Alice framework, the
Examiner states
[t]he claims do not include additional elements that are sufficient
to amount to significantly more than the judicial exception
because considered separately and in combination, the
generically recited computer elements do not add meaningful
limitations to the abstract idea because they would be routine in
any computer implementation and therefore they do not add
significantly more to the abstract idea itself.
(Final Act. 6–7). We agree with the Examiner that the additional elements
taken alone or in combination do not result in anything more than
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conventional computer implementation. And, considered as an ordered
combination, the “one or more computing devices” recited by independent 1
add nothing that is not already present when the limitations are considered
separately. Viewed as a whole, independent claim 1 simply recites “a series
of steps instructing how to exchange bonds for an enhanced bond” (Final
Act. 6). See Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 716 (Fed. Cir.
2014) (“[T]he claimed sequence of steps comprises only ‘conventional steps,
specified at a high level of generality,’ which is insufficient to supply an
‘inventive concept.’”) (Citing Alice, 134 S. Ct. at 2357). The claims do not,
for example, purport to improve the functioning of the computer itself. Nor
do they effect an improvement in any other technology or technical field, as
discussed above with respect to prong two of step 2A. Instead, independent
claim 1 amounts to nothing significantly more than an instruction to apply
the abstract idea using “one or more computing devices” (id.), which under
our precedents, is not enough to transform an abstract idea into a patent-
eligible invention. See Alice, 134 S. Ct. at 2360.
Finally, to the extent Appellants maintain that the claimed invention is
patent-eligible, i.e., that claim 1 amounts to “significantly more” than an
abstract idea, because the present claims include “features that differentiate
the claims from the prior art” (Reply Br. 8–10), Appellants misapprehends
the controlling precedent.
Neither a finding of novelty nor a non-obviousness determination
automatically leads to the conclusion that the claimed subject matter is
patent-eligible. Although the second step in the Mayo/Alice framework 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
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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 (citation omitted).
“Groundbreaking, innovative, or even brilliant discovery does not by itself
satisfy the § 101 inquiry.” Ass’n for Molecular Pathology, 569 U.S. at 591.
A novel and non-obvious claim directed to a purely abstract idea is,
nonetheless, patent-ineligible. See Mayo, 566 U.S. at 90; see also Diamond,
450 U.S. at 188–89 (“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 the § 101 categories of possibly
patentable subject matter.”).
Appellants’ other arguments, including those directed to now-
superseded USPTO guidance, have been considered but are not persuasive
of error. (See 2019 Revised Guidance, 84 Fed. Reg. at 51 (“Eligibility-
related guidance issued prior to the Ninth Edition, R-08.2017, of the MPEP
(published Jan. 2018) should not be relied upon.”))).
We are not persuaded, on the present record, that the Examiner erred
in rejecting independent claim 1 under 35 U.S.C. § 101. Therefore, we
sustain the Examiner’s rejection of independent claim 1, and claims 3, 5–9,
11, 13–17, and 22–27, which fall with independent claim 1.
Dependent Claims 4, 12, 28, and 29
Appellants argue that “[d]ependent claims 4, 12, 28, and 29 further
demonstrate ‘unconventional steps that confine the claim[s] to a particular
application,’” and as such, include limitations that “amount to significantly
more than the purported abstract idea of ‘instructing how to exchange bonds
for an enhanced bond’” (Appeal Br. 20–22; see also Reply Br. 10). To
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support its argument, Appellants argue that claims 28 and 29 include
features which “further restrict the recited exchange process to a particular
useful application and limit the preclusive effect on the purported judicial
exception” and claims 4 and 12 include features that “allow[] a market
participant to revert the enhanced bond back to the original exchangeable
bond, in contrast to conventional techniques such as using an ABS in which
reversion to the underlying securities is not typically allowed or feasible”
(see Appeal Br. 21). We cannot agree.
Instead, we find that the argued features merely describe further
characteristics of the underlying concept and lack additional elements that
would render the claim patent-eligible. In this regard, we agree with the
Examiner that these additional are abstract idea themselves and fails to
transform the abstract into something patent-eligible (see Ans. 23–25). In
this regard, dependent claims 28 and 29 simply describe characteristics
related to transmitting data and of claims 4 and 12 merely describe
characteristics related to exchanging bonds, which, which we discern sit
squarely within, and does not alter appreciably, the broader concept of
“exchang[ing] bonds for an enhanced bond” (see Final Act. 6).
As such, we are not persuaded by Appellants’ arguments for these
reasons, and the reasons discussed with respect to independent claim
1, supra. Therefore, we sustain the rejection of dependent claims 4, 12, 28,
and 29 under 35 U.S.C. § 101.

DECISION
The Examiner’s rejection of claims 1, 3–9, 11–17, and 22–29 under
35 U.S.C. § 101 is affirmed.
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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)(1)(iv).
AFFIRMED