Carlton Bartels et al.

Patent Trials and Appeals Board

Nov 27, 2019

12267078 - (D) (P.T.A.B. Nov. 27, 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.
12/267,078 11/07/2008 Carlton Bartels 01-1055-C1 5410
63710 7590 11/27/2019
INNOVATION DIVISION
CANTOR FITZGERALD, L.P.
110 EAST 59TH STREET (6TH FLOOR)
NEW YORK, NY 10022
EXAMINER
POLLOCK, GREGORY A
ART UNIT PAPER NUMBER
3695
NOTIFICATION DATE DELIVERY MODE
11/27/2019 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 CARLTON BARTELS and ADAM WHITE
Appeal 2018-008660
Application 12/267,078
Technology Center 3600
Before ERIC S. FRAHM, LINZY T. McCARTNEY, and
MICHAEL T. CYGAN, Administrative Patent Judges.
McCARTNEY, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks review under 35 U.S.C. § 134(a) of the Examiner’s
final decision to reject claims 1–6, 8, 10, 11, 13, 17–23, 28, and 29. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 Appellant identifies the real party in interest as CANTORCO2E, LLC.
Appeal Brief 2, filed March 2, 2018 (“App. Br.”).
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BACKGROUND
This patent application concerns “an electronic trading system for
simulating the trading of carbon dioxide equivalent emission reductions and
methods of use.” Specification ¶ 2, filed November 7, 2008 (“Spec.”). Claim
1 illustrates the claimed subject matter:
1. A method of displaying on and receiving from an
interactive screen of a computer information relating to carbon
dioxide equivalent emissions for facilitating electronic
simulation and electronic trading of carbon dioxide equivalent
emissions in an electronic system, the method, comprising:
[a] receiving by a server from the interactive screen of a
computer a representation of a marginal abatement cost curve,
wherein the marginal abatement cost curve comprises an
indication of an amount of money to produce internal reductions
of carbon dioxide equivalent emissions;
[b] receiving by the server from the interactive screen of
the computer a selection of an organization to participate in an
electronic simulation;
[c] displaying by the server to the interactive screen of the
computer a volume of carbon dioxide equivalent emissions of the
organization and an amount of available cash of the organization,
wherein the available cash of the organization is usable by a user
in the simulation to reduce the volume of carbon dioxide
equivalent emissions of the organization;
[d] receiving by the server from the interactive screen of
the computer input to generate for the selected organization a
computer-based representation of a volume of internal reductions
of carbon dioxide equivalent emissions;
[e] based on the marginal abatement cost curve,
calculating by the server a cost for the generated volume of
internal reductions of carbon dioxide equivalent emissions;
[f] based on the cost, decreasing by the server for the
organization the amount of available cash;
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[g] displaying by the server to the interactive screen of the
computer the generated volume of internal reductions of carbon
dioxide equivalent emissions, and a difference between the
volume of carbon dioxide equivalent emissions of the
organization and the generated volume of internal reductions of
carbon dioxide equivalent emissions; and
[h] displaying by the server to the interactive screen of the
computer the decreased amount of available cash.
App. Br. 18 (bracketed letters added).
REJECTIONS
Claims 35 U.S.C. § References
1–6, 8, 10, 11, 13, 17–23,
28, 29 101
1–6, 8, 10, 11, 13, 17–23,
28, 29 103(a) Innes,
2 AIA § 14 3
ANALYSIS
We have reviewed the Examiner’s rejections and Appellant’s
arguments, and we disagree with Appellant that the Examiner erroneously
rejected claims 1–6, 8, 10, 11, 13, 17–23, 28, and 29 under § 101. For this
rejection, as consistent with the discussion below, we adopt the Examiner’s
reasoning, findings, and conclusions on pages 2–10 of the Final Office
Action mailed October 6, 2017 (“Final Act.”) and pages 3–7 of the
Examiner’s Answer mailed July 5, 2018 (“Ans.”). We agree with Appellant
that the Examiner erroneously rejected claims 1–6, 8, 10, 11, 13, 17–23, 28,
29 under § 103(a). We address these rejections in turn.

2 Innes et al. (US 2002/0198750 A1; Dec. 26, 2002).
3 Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112-29, § 14 125
Stat 284, 327–28 (2011).
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Section 101 Rejection
Section 101 of the Patent Act provides that “any new and useful
process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof” is patent eligible. 35 U.S.C. § 101. But the
Supreme Court has long recognized an implicit exception to this section:
“Laws of nature, natural phenomena, and abstract ideas are not patentable.”
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)).
To determine whether a claim falls within one of these excluded categories,
the Court has set out a two-part framework. The framework requires us first
to consider whether the claim is “directed to one of those patent-ineligible
concepts.” Alice, 573 U.S. at 217. If so, we then examine “the elements of
[the] claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Alice, 573 U.S. at 217 (quoting Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 78, 79 (2012)).
That is, we examine the claim for an “inventive concept,” “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 (alteration in original) (quoting
Mayo, 566 U.S. at 72–73).
The Patent Office has revised its guidance about this framework. See
2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50
(Jan. 7, 2019) (“Revised Guidance”). Under the Revised Guidance, to decide
whether a claim is directed to an abstract idea, we evaluate whether the
claim (1) recites subject matter that falls within one of the abstract idea
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groupings listed in the Revised Guidance and (2) fails to integrate the recited
abstract idea into a practical application. See Revised Guidance, 84 Fed.
Reg. at 51, 54. If the claim is directed to an abstract idea, as noted above, we
then determine whether the claim has an inventive concept. The Revised
Guidance explains that when making this determination, we should consider
whether the additional claim elements add “a specific limitation or
combination of limitations that are not well-understood, routine,
conventional activity in the field” or “simply append[] well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality.” Revised Guidance, 84 Fed. Reg. at 56.
With these principles in mind, we turn to the § 101 rejection.
Appellant argues claims 1–6, 8, 10, 11, 13, 17–23, 28, and 29 together for
this rejection, so as permitted by 37 C.F.R. § 41.37(c)(1)(iv), we decide the
appeal for this ground of rejection based on claim 1.
Abstract Idea
The Revised Guidance explains that the abstract idea exception
includes “certain methods of organizing human activity” such as
“fundamental economic principles or practices,” “commercial or legal
interactions,” and “managing personal behavior or relationships or
interactions between people.” Revised Guidance, 84 Fed. Reg. at 52. The
Examiner determined that claim 1 recites subject matter that falls within this
abstract idea grouping, among others. See, e.g., Final Act. 3–5.
We agree. Claim 1 recites a method that includes limitations [a]–[h]
reproduced above. The method (1) receives a representation of a marginal
abatement cost curve and a selection of an organization to participate in an
electronic simulation, (2) displays the organization’s volume of carbon
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dioxide equivalent (CO2e) emissions and available cash, and (3) receives
input to generate a representation of a volume of internal reductions of CO2e
emissions for the organization. See App. Br. 18. The method also (4)
calculates a cost for the generated volume of internal reductions of CO2e
emissions based on the marginal abatement cost curve and (5) decreases the
organization’s amount of available cash based on the cost. See App. Br. 18.
Finally, the method (6) displays (i) the generated volume of internal
reductions of CO2e emissions, (ii) a difference between the volume of CO2e
emissions of the organization and the generated volume of internal
reductions of CO2e emissions, and (iii) the decreased amount of available
cash. See App. Br. 18.
As explained by the written description, the claimed method simulates
trading CO2e emission reductions. See, e.g., Spec. ¶ 2 (“The present
invention relates to electronic trading and more particularly, to an electronic
trading system for simulating the trading of carbon dioxide equivalent
emission reductions and methods of use.”). This is an economic practice that
is not meaningfully different from other practices that courts have
determined are abstract ideas. See, e.g., Alice, 573 U.S. at 219 (intermediated
settlement); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384
(Fed. Cir. 2019) (providing a trader with additional financial information to
facilitate market trades); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d
1084, 1092 (Fed. Cir. 2019) (graphing (or displaying) bids and offers to
assist a trader to make an order); Intellectual Ventures I LLC v. Capital One
Bank (USA), 792 F.3d 1363, 1367 (Fed. Cir. 2015) (tracking financial
transactions to determine whether they exceed a pre-set spending limit (i.e.,
budgeting)). Claim 1 thus recites certain methods of organizing human
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activity, one of the abstract idea groupings identified in the Revised
Guidance. See Revised Guidance, 84 Fed. Reg. at 52 (explaining that certain
methods of organizing human activity include fundamental economic
principles or practices and commercial or legal interactions).
Because we determine that claim 1 recites an abstract idea, we next
consider whether claim 1 integrates the abstract idea into a practical
application. See Revised Guidance, 84 Fed. Reg. at 51. In doing so, we
evaluate the claim as a whole to determine whether the claim “integrate[s]
the [abstract idea] into a practical application, using one or more of the
considerations laid out by the Supreme Court and the Federal Circuit.”
Revised Guidance, 84 Fed. Reg. at 55; see also USPTO, October 2019
Update: Subject Matter Eligibility at 12 (Oct. 17, 2019),
https://www.uspto.gov/sites/default/files/documents/peg_oct_2019_update.p
df (“October 2019 Update”) (discussing the practical application analysis).
That is, we consider any additional elements recited in the claim along with
the limitations that recite an abstract idea to determine whether the claim
integrates the judicial exception into a practical application. See October
2019 Update 12.
Claim 1 does not integrate the recited abstract idea into a practical
application. The additional elements recited in claim 1 include “an electronic
system,” “an interactive screen of a computer,” and “a server.” App. Br. 18.
The written description makes clear that each of these elements encompasses
generic computer components. The written description describes an
electronic trading system that includes user and administrator computer
equipment, a trading server, a computer network, and communication links.
See, e.g., Spec. ¶¶ 47–52, Figs. 1, 2. The written description explains that the
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user and administrator computer equipment “may include a computer,
processor, personal computer, laptop computer, handheld computer, personal
digital assistant, computer terminal, any other suitable computing device, or
combination of such devices.” Spec. ¶ 47 (emphasis added). The written
description also states that computer equipment can include a display, which
“may be a computer monitor, a handheld computer display, a laptop
computer display, a personal digital assistant display, or any other suitable
display equipment.” Spec. ¶ 49 (emphasis added). Similarly, the written
description explains that the trading server, communication links, and
computer network in the electronic trading system can include any suitable
equipment. See, e.g., Spec. ¶¶ 47 (“A server such as trading server 114 may
be any suitable server, processor, computer, data processing device, or a
combination of such devices. In one example, trading server 114 may be a
server powered by eSpeed, Inc.” (emphasis added)), 51 (“Computer network
106 may be any suitable computer network including the Internet . . . .”
(emphasis added)), 52 (“Communications links 104, 110, and 112 may
include satellite paths, coaxial cable paths, fiber-optic paths, twisted pair
paths, other wire or cable-based links, modems, wireless paths through free
space, any other suitable paths, or a combination of such paths.” (emphasis
added)).
The additional elements recited in claim 1 also perform generic
computer functions. Claim 1 recites that a server displays or receives certain
information. See App. Br. 18. Each of these functions is a generic computer
function. See, e.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350,
1354 (Fed. Cir. 2016) (“And we have recognized that merely presenting the
results of abstract processes of collecting and analyzing information, without
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more (such as identifying a particular tool for presentation), is abstract as an
ancillary part of such collection and analysis.”); buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350, 1355 (Fed. Cir. 2014) (“That a computer receives and
sends the information over a network—with no further specification—is not
even arguably inventive.”). Claim 1 also recites that the server calculates a
particular cost and, based on the cost, decreases the amount of an
organization’s available cash. See App. Br. 18. These are also generic
computer functions. See, e.g., Alice, 573 U.S. at 225, 226 (stating that
“[u]sing a computer to create and maintain ‘shadow’ accounts amounts to
electronic recordkeeping—one of the most basic functions of a computer”
and that “[n]early every computer will include a ‘communications
controller’ and ‘data storage unit’ capable of performing the basic
calculation, storage, and transmission functions required by the method
claims.”); Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.),
687 F.3d 1266, 1278 (Fed. Cir. 2012) (“The computer required by some of
Bancorp’s claims is employed only for its most basic function, the
performance of repetitive calculations, and as such does not impose
meaningful limits on the scope of those claims.”).
Considering claim 1 as a whole, the claim recites using generic
computer components that perform generic computer functions to implement
an abstract idea. This does not integrate the abstract idea into a practical
application. See, e.g., Alice, 573 U.S. at 223–24 (“Given the ubiquity of
computers, wholly generic computer implementation is not generally the sort
of ‘additional featur[e]’ that provides any ‘practical assurance that the
process is more than a drafting effort designed to monopolize the [abstract
idea] itself.’” (internal citation omitted) (quoting Mayo, 566 U.S. at 77)).
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Appellant contends that claim 1 amounts to significantly more than an
abstract idea because the claimed subject matter allegedly improves
computer-related technology. See App. Br. 9–11. According to Appellant,
the claimed subject matter
may help improve computer performance by facilitating
electronic trading over a network with techniques for improved
electronic simulation systems to allow access of electronic
simulation and electronic trading of carbon dioxide equivalent
emissions in an electronic system which may help reduce the
amount of activity or traffic over the network and which may
help reduce computer workload including computer resources
such as memory resources, processor resources, and network
resources such as network bandwidth.
App. Br. 10 (emphasis omitted); see also App. Br. 6–7 (making similar
arguments).
We disagree. First, Appellant has provided no persuasive evidence
that the claimed invention provides the identified benefits. Appellant asserts
that the claimed invention “may help improve computer performance,” “may
help reduce the amount of activity or traffic over the network,” and “may
help reduce computer workload including computer resources such as
memory resources, processor resources, and network resources such as
network bandwidth.” App. Br. 10 (emphases added). But Appellant has
pointed to nothing in the written description that shows that the claimed
invention actually provides these benefits, nor has Appellant provided any
other cogent evidence that these benefits flow from the claimed invention.
Simply saying that the claimed invention may provide certain benefits does
not establish that is the case.
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Second, Appellant contends that the recited abstract idea in part
improves computer-related technology. Appellant argues that the recited
“techniques may help improve computer performance,” App. Br. 10
(emphasis added), and points to the receiving and displaying steps in
limitations [b], [d], [g], and [h] when contending that claim subject matter is
directed to computer-related improvements, see App. Br. 6–7. But these
aspects of claim 1 form part of the identified abstract idea, and the abstract
idea itself cannot integrate the abstract idea into a practical application. See
Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084, 1093 (Fed. Cir. 2019)
(“The abstract idea itself cannot supply the inventive concept, ‘no matter
how groundbreaking the advance.’” (quoting SAP Am., Inc. v. InvestPic,
LLC, 898 F.3d 1161, 1170 (Fed. Cir. 2018))).4 Although Appellant also
points to the recited “interactive screen of a computer” and “electronic
system” to show that the claim improves computer-related technology, see
App. Br. 6–7, as discussed above, these elements are generic computer
components that perform generic computer functions. Appellant has offered
no persuasive evidence that the claimed method causes these elements to
perform differently than generic computer components, let alone improves
how the elements function.

4 Even if these limitations were not part of the identified abstract idea, these
limitations would not make claim 1 patent eligible because they recite
insignificant extra-solution activities. See, e.g., CyberSource Corp. v. Retail
Decisions, Inc., 654 F.3d 1366, 1372 (Fed. Cir. 2011) (determining that
certain “data-gathering steps cannot alone confer patentability”); Apple, Inc.
v. Ameranth, Inc., 842 F.3d 1229, 1242 (Fed. Cir. 2016) (agreeing with the
Board that printing and downloading menus are “are insignificant post-
solution activities that do not support the invention having an ‘an inventive
concept’”).
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Appellant also contends that the Examiner’s comparison of claim 1 to
the claims at issue in prior court decisions is flawed because the Examiner
“oversimplified” the claim and “fail[ed] to consider” aspects of the claim
such as the allegedly improved electronic simulation systems and interface.
App. Br. 6–7. Appellant also argues that the Examiner did not cite court
decisions that are “reasonably tied to the facts of the case” and instead relied
“upon language taken out of context.” App. Br. 7 (emphases omitted).
We see no merit to these arguments. The Examiner reproduced the
limitations recited in claim 1, explained why the limitations recite abstract
ideas, and explained why the claimed subject matter does not amount to
significantly more than the recited abstract ideas. See Final Act. 3–7; see
also Ans. 4–7. Appellant has provided no persuasive evidence or reasoning
to support the assertion that the Examiner “oversimplified” claim 1 or
“fail[ed] to consider” aspects of the claim. See App. Br. 7. Similarly,
Appellant does not persuasively explain why the cases cited by the Examiner
are not “reasonably tied to the facts of the case.” See App. Br. 7. Nor does
Appellant identify the language that the Examiner allegedly took out of
context, much less adequately explain how the Examiner took that language
out of context. See App. Br. 7. We thus find these inadequately supported
arguments unpersuasive.
Inventive Concept
Finally, we consider whether claim 1 has an inventive concept, that is,
whether the claim has 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 78, 79). As noted above, this requires us to evaluate
whether the additional claim elements add “a specific limitation or
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combination of limitations that are not well-understood, routine,
conventional activity in the field” or “simply append[] well-understood,
routine, conventional activities previously known to the industry, specified
at a high level of generality.” Revised Guidance, 84 Fed. Reg. at 56.
The Examiner determined that the additional elements recited in claim
1 perform well-understood, routine, and conventional activities. See Final
Act. 6. We agree. As discussed above, the additional elements recited in
claim 1 include “an electronic system,” “an interactive screen of a
computer,” and “a server.” App. Br. 18. The written description indicates
that these elements encompass conventional components. See, e.g., Spec.
¶¶ 47–52, Figs. 1, 2. Claim 1 recites that the server displays or receives
certain information, calculates a particular cost, and decreases the amount of
an organization’s available cash based on the calculated cost. See App. Br.
18. These are conventional computer functions. See, e.g., Alice, 573 U.S. at
225, 226; Elec. Power Grp., 830 F.3d at 1354; buySAFE, 765 F.3d at 1355;
Bancorp, 687 F.3d at 1278.
Appellant contends that claim 1 recites “specific computer operations
that allow the computer to perform a function that conventional computers
cannot perform.” App. Br. 7 (emphases omitted); see also Reply Brief 3,
filed September 5, 2018 (asserting that the techniques recited in claim 1 are
not well-understood, routine, or conventional). Appellant has provided no
persuasive support for this contention, and the portions of the written
description cited above indicate otherwise. We therefore find this argument
unpersuasive.
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Summary
For the above reasons, we determine that claim 1 is directed to an
abstract idea and does not have an inventive concept. We thus sustain the
Examiner’s rejection of claim 1 under § 101.

Section 103 Rejection
The Examiner rejected claim 1–6, 8, 10, 11, 13, 17–23, 28, and 29
under § 103(a) over a combination of Innes and Section 14 of the AIA. See
Final Act. 7–8. The Examiner relied on Innes primarily for subject matter
recited in the preambles of these claims and certain electronic components.
See Final Act. 7. The Examiner found the remaining limitations “all directed
toward carbon dioxide or greenhouse credits and/or trading which are
interpreted as a form of tax strategy in the United States and/or other
countries” and determined that Appellant could not rely on these limitations
to distinguish the prior art under § 14 of the AIA. Final Act. 7–8.
Appellant contends that the subject matter recited in the rejected
claims is “not directed to a ‘tax strategy for reducing, avoiding or deferring a
tax liability”” and therefore § 14 of the AIA is inapplicable. App. Br. 14.
Appellant contends that even if we consider the claimed subject matter to be
a “tax strategy for reducing, avoiding or deferring a tax liability,” the
claimed subject matter falls under the financial management exception of
§ 14 of the AIA. See App. Br. 14–15.
We agree with Appellant. Under § 14(a) of the AIA, “any strategy for
reducing, avoiding, or deferring tax liability, whether known or unknown at
the time of the invention or application for patent, shall be deemed
insufficient to differentiate a claimed invention from the prior art.” The
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Examiner has not adequately explained why the claimed method and
apparatus for simulating trading of CO2e emissions is a “tax strategy” under
§ 14 of the AIA. The Examiner found that the Kyoto Protocol uses carbon
credits and stated that this fact “forms the basis of the rejection [of] which
the examiner is maintaining.” See Ans. 8. That the Kyoto Protocol uses
carbon credits, without more, does not establish that the claimed method and
apparatus for simulating trading of CO2e emissions form a “tax strategy”
under § 14 of the AIA. Nor does this fact show that the alleged “tax
strategy” is a strategy “for reducing, avoiding, or deferring tax liability” as
required by § 14 of the AIA. In addition, § 14(c)(2) of the AIA excludes any
“method, apparatus, technology, computer program product, or system used
solely for financial management, to the extent that it is severable from any
tax strategy or does not limit the use of any tax strategy by any taxpayer or
tax advisor.” Appellant explicitly argued that this exception applies to the
rejected claims, see App. Br. 14–15, and the Examiner did not address this
argument.
For the above reasons, we do not sustain the Examiner’s rejection of
claims 1–6, 8, 10, 11, 13, 17–23, 28, and 29 under § 103(a).
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CONCLUSION
Claims 35 U.S.C § References Affirmed Reversed
1–6, 8, 10, 11,
13, 17–23, 28,
29
101
1–6, 8, 10,
11, 13, 17–
23, 28, 29

1–6, 8, 10, 11,
13, 17–23, 28,
29
103(a) Innes, AIA § 14
1–6, 8, 10,
11, 13, 17–
23, 28, 29
Overall
Outcome
1–6, 8, 10,
11, 13, 17–
23, 28, 29

No period for taking any 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