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`Paper No. ______
`Filed: March 6, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`and TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
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`
`
`Case CBM2014-00137
`Patent 7,685,055
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`Patent Owner’s Response
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`
`I.
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`II.
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`Case No. CBM2014-00137
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`TABLE OF CONTENTS
`
`INTRODUCTION ....................................................................................................... 1
`
`THE CLAIMS ARE DIRECTED TO STATUTORY SUBJECT
`MATTER IN SATISFACTION OF 35 U.S.C. § 101. ........................................... 3
`
`A.
`
`The Patented Invention Solved Technical Problems with Prior
`GUIs .................................................................................................................... 3
`
`1.
`
`2.
`
`The Prior GUI and Associated Problems .......................................... 4
`
`The Claimed Solution to the Problem: A New GUI That
`Improved Speed and Usability ............................................................. 6
`
`B.
`
`The Claimed Features and Functionality of the Improved GUI
`Are An Inventive Concept, Not Conventional. .......................................... 18
`
`C.
`
`D.
`
`E.
`
`1.
`
`The Claimed GUI Features Were the Inventive
`Contribution .......................................................................................... 20
`
`A New GUI Is New Technology .................................................................. 22
`
`The Current 101 Framework ......................................................................... 24
`
`The Claims Are Patent Eligible Because There Is No Preemption
`Concern ............................................................................................................. 25
`
`1.
`
`2.
`
`The Claims Fail to Impermissibly Preempt Because There
`Is Evidence that Other Ways to Practice the Abstract Idea
`Using a Computer Exist ...................................................................... 26
`
`TT’s Prior Patent’s Disclose Non-Preempted Ways of
`Repositioning Market Information ................................................... 27
`
`F.
`
`Under a Proper Application of the Alice Test, the Claims are
`Patent-Eligible under 35 U.S.C. 101. ............................................................ 28
`
`1.
`
`2.
`
`The Claims Are Not Directed To the Abstract Idea
`Adopted In the Institution Decision ................................................. 28
`
`The Claims Recite An Inventive Concept Other Than An
`Abstract Idea. ........................................................................................ 30
`
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`Case No. CBM2014-00137
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`G.
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`The PTAB Should No Longer Adopt the Petition’s § 101 Analysis ....... 32
`
`1.
`
`2.
`
`3.
`
`There Is No Evidence That the Claims Recite a
`Conventional GUI or an Abstract Idea ............................................ 32
`
`Software Inventions Are Patentable Even If Performed On
`a Generic Computer ............................................................................ 33
`
`New Case Law Confirms That the Claims are Patent
`Eligible ................................................................................................... 36
`
`III. ALL PRIOR ART GROUNDS SHOULD BE DISMISSED
`BECAUSE THE TSE TRANSLATION FILED BY TD (EXHIBIT
`1008) SHOULD BE EXCLUDED OR GIVEN NO WEIGHT. ..................... 39
`
`A.
`
`B.
`
`C.
`
`D.
`
`The TSE Translation in Exhibit 1008 is Unreliable. .................................. 40
`
`At Least Pages 101-140 Should Be Excluded for Failing to
`Comply with 37 C.F.R. § 42.63(B). ............................................................... 41
`
`TD Failed to Show that the TSE Document is Prior Art. ........................ 46
`
`Because The TSE Translation Should Be Excluded Or Given No
`Weight, The Board Should Dismiss The Prior Art Grounds And
`Hold That The ’055 Patent Is Not Unpatentable Based On The
`Instituted Grounds. ......................................................................................... 48
`
`IV. THE TSE TRANSLATION FILED BY TD (EXHIBIT 1008) IS
`SUBSTANTIVELY INACCURATE AND SHOULD BE GIVEN NO
`WEIGHT, AND THE BOARD SHOULD DISMISS THE PRIOR
`ART GROUNDS. ....................................................................................................... 49
`
`V.
`
`CLAIMS 1, 3, 4, 6-15, AND 17-19 ARE PATENTABLE OVER TSE ........... 53
`
`A.
`
`TSE Does Not Disclose Or Suggest Adjusting Price Levels
`Displayed Along A Static Price Axis, as Required by Independent
`Claims 1 And 17, and their Dependent Claims. .......................................... 54
`
`1.
`
`2.
`
`Independent claims 1 and 17 require that the price levels be
`displayed along a static price axis before the adjustment. ............... 54
`
`TD points to a compressed method display in TSE, but
`this display includes no static price axis. ............................................ 54
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`ii
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`Case No. CBM2014-00137
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`B.
`
`TSE Also Does Not Disclose Or Suggest Any “Reposition
`Command To Reposition The Static Price Axis When A
`Designated Price Is Within A Designated Number Of Price
`Levels From The Lowest Value Or The Highest Value Along The
`Static Price Axis,” As Required By Independent Claims 1 And 17,
`And Their Dependent Claims. ....................................................................... 56
`
`1.
`
`2.
`
`3.
`
`TD’s arguments regarding this limitation are based on a
`flawed translation of TSE. .................................................................. 56
`
`The correct translation of TSE reveals that TSE fails to
`disclose or suggest any “designated number of price levels
`from the lowest value or the highest value along the static
`price axis,” as required by independent claims 1 and 17. ............... 57
`
`The Board cannot rely on TD’s flawed translation to find
`any of the claims unpatentable over TSE. ........................................ 59
`
`C.
`
`TSE Also Does Not Disclose Or Suggest “Receiving A Second
`Reposition Command To Reposition The Static Price Axis When
`A Timer Expires,” as Required by Dependent Claims 13 And 18. ......... 59
`
`VI. CLAIMS 2 AND 5 ARE PATENTABLE OVER THE
`COMBINATION OF TSE AND GUTTERMAN. ............................................. 60
`
`VII. MR. RHO’S TESTIMONY SHOULD NOT BE GIVEN ANY
`WEIGHT BECAUSE HE WAS NEVER ONE OF ORDINARY
`SKILL IN THE ART. ................................................................................................ 61
`
`VIII. THE PTAB SHOULD DISMISS THE PROCEEDING BECAUSE IT
`LACKS JURISDICTION .......................................................................................... 64
`
`A.
`
`The Decision misapplied the technological invention test ........................ 67
`
`1.
`
`2.
`
`3.
`
`The claim limitations recite novel and nonobvious
`technology ............................................................................................. 67
`
`The claims recite a technological feature that is novel and
`nonobvious ............................................................................................ 68
`
`The claims solve technical problems with a technical
`solution .................................................................................................. 70
`
`IX. CONCLUSION........................................................................................................... 73
`
`iii
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`I.
`
`INTRODUCTION
`
`Case No. CBM2014-00137
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`The ’055 patent is a continuation-in-part of the ’132 patent, subject of
`
`CBM2014-00135, and builds upon the inventions disclosed in that patent, some of
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`which are also claimed in U.S. Patent 6,766,304 (the “’304 patent”), and U.S. Patent
`
`7,676,411 (the “’411 patent”).1 The general field of art of this family of patents is the
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`design and operation of graphical user interfaces (“GUIs”) used for electronic trading.
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`See Ex. 2020, ’132 patent, Field of Invention, 1:11-18 (“Specifically, the invention
`
`provides a trader with a versatile and efficient tool for executing trades. It facilitates
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`the display of and the rapid placement of trade orders …”).
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`The claimed invention is directed to patent eligible subject matter–the technical
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`features of an innovative GUI. TT’s claims are rooted in computer technology—
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`particular features and functionality of a specialized GUI (i.e., a graphical device/tool)
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`—and are eligible under both steps of the two-part test set forth in Alice. First,
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`because the claimed technical features are directed to a specific tool, the claimed
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`invention does not preempt TD’s purported abstract idea of “repositioning market
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`information on a graphical user interface.” Indeed, there are many ways of executing
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`the purported abstract idea without utilizing the claimed invention. As such, the
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`claimed invention is not directed to an abstract idea. Second, the claimed elements,
`
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`1 The ’304 and ’411 patents are the subject of CBM2014-00136 (not instituted) and
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`CBM2014-0133, respectively (also filed by TD).
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`Case No. CBM2014-00137
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`either individually or as a combination, ensure that the claims in practice amount to
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`significantly more than a patent on simply the purported abstract idea. As such, the
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`claimed invention sets forth the inventive concept to satisfy the second prong of the
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`two-part Alice test.
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`Indeed, a district court recently reached the same conclusion with regards to
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`the claims of the ’132 patent that, while different in scope, also relate to solving
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`problems of prior art GUIs. The Court found the claims of the ’132 patent eligible
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`under both prongs of the Alice framework because the claims are not directed to an
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`abstract idea and, even if they were, the claims recite an inventive concept that ensures
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`that the patent is directed to more than the abstract idea itself. The district court
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`found TT’s claims not directed to an “abstract idea,” but technological in nature,
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`“solv[ing] problems of prior graphical user interface devices (GUIs), in the context of
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`computerized trading, relating to speed, accuracy and usability.” Ex. 2200, Trading
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`Techs. Int’l, Inc. v. CQG, 05-cv-4811 (N.D. Ill. Feb. 24, 2015) (Dkt. 1073). The district
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`court held that TT’s claims are rooted in computer technology—particular features
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`and functionality of a specialized GUI (i.e., a graphical device/tool) that happens to
`
`be used for placing trade orders and displaying market information. Id. at 5-7. As
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`such, the claims here have no issues of eligibility under § 101.
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`Moreover, because the claimed technology improves prior technology by
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`“solv[ing] problems of prior [GUIs], in the context of computerized trading, relating
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`Case No. CBM2014-00137
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`to speed, accuracy and usability,” there is no standing to challenge the patent under
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`AIA Section 18. Id. at 6.
`
`Finally, TD’s effort to invalidate TT’s claims under 35 U.S.C. § 103 relies on a
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`translation of a foreign language document (TSE) that should be excluded or given no
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`weight because it is unreliable, fails to comply with the Board’s rules, and has not been
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`shown to be prior art. Indeed, the translation is rife with inaccuracies resulting from
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`what TD’s translators characterized as a “rush” job and the translators’ unfamiliarity
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`with the subject matter of the underlying document. In addition, a district court jury
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`previously determined that TSE is not prior art as of March 2, 2000, the ’055 patent’s
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`earliest priority date. For all of these reasons and because TD’s alleged prior art fails
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`to disclose or suggest multiple features of every claim, the PTAB should reject TD’s
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`grounds of unpatentability under 35 U.S.C. §§ 101 and 103.
`
`II. THE CLAIMS ARE DIRECTED TO STATUTORY SUBJECT
`MATTER IN SATISFACTION OF 35 U.S.C. § 101.
`A.
`
`The Patented Invention Solved Technical Problems with Prior
`GUIs
`
`The claims are directed to patentable subject matter in the form of technical
`
`features of an innovative GUI tool. The inventors identified several problems
`
`(explained in detail below) with GUIs embodying the ’132, ’304, and ’411 patents and
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`redesigned the GUIs embodying those patents to solve those problems. Although
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`inventiveness is not required to pass muster under § 101, the inventiveness in all of
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`the claims rests upon the combination of particular features of a GUI tool, not
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`Case No. CBM2014-00137
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`practicing a method of doing business or data processing. While the claimed tool
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`could be used to implement trading strategies (e.g., buy low/sell high), the claims are
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`not directed to any trading strategy. Instead, the record is clear that the claims are
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`directed to a specific improvement to GUIs used to conduct a trade on a computer.
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`These types of improvements are patent eligible under 35 U.S.C. § 101.
`
`1.
`The claimed technical features of the GUI tool in the ’132, ’304, and ’411
`
`The Prior GUI and Associated Problems
`
`patents solved technical problems with the prior art (relating to, among other things,
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`speed, accuracy, efficiency and precision) with a technical solution—by combining
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`structural and functional features of a graphical tool in a new way. After a period of
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`initial skepticism, the MD Trader product, which embodied the claims of the ’132,
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`’304, and ’411 patents, became a huge commercial success (Ex. 2007, slide 34) and
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`received widespread industry praise (Ex. 2010, ¶ 32 ). The technology received many
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`accolades from experienced people in the industry. Id.
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`However, like most breakthrough technologies, this new technology also
`
`brought about several new, technological problems created by the inventions
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`disclosed in the ’132, ’304, and ’411 patents. For example, the GUI tool disclosed in
`
`the ’132, ’304, and ’411 patents provided bid/ask indicators that moved relative to a
`
`price axis in response to market changes. See, e.g., Ex. 1001, 9:12-16 (“[t]he inside
`
`market and market depth [then] ascend and descend as prices in the market increase
`
`and decrease. FIG. 4 shows a screen displaying the same market as that of FIG. 3, but
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`4
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`

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`Case No. CBM2014-00137
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`at a later interval where the inside market, cells 400, has risen three ticks.”). But the
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`indicators in the GUI moved to what some users viewed as undesired locations
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`relative to the price axis and in some instances off the price axis completely. See, e.g.,
`
`Ex. 1001, 9:21-26 (“As the market ascends or descends the price column, the inside
`
`market, working orders, last traded price and/or quantity, or any other item that may
`
`be of interest might go above or below the price column displayed on a trader's
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`screen. Usually a trader will want to be able to see the inside market to assess future
`
`trades.”).
`
`As described in the ’055 patent, this technical problem was of particular interest
`
`during volatile markets—for example, when market information was changing rapidly.
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`Ex. 1001, 26:23-35. Volatile markets created a scenario where the bid/ask indicators
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`could potentially keep moving off the display, decreasing the “likelihood of entering
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`quantities and having those quantities filled at desirable prices.” Ex. 1001, 26:30-35.
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`This creates a speed problem. Furthermore, usability also becomes a problem because,
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`if the indicators were located off the price axis, the GUI tool did not convey the state
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`of the market precisely or efficiently. Ex. 1001, 9:25. (“Usually a trader will want to be
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`able to see the inside market to assess future trades. The system addresses this
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`problem with a positioning feature.”).
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`Case No. CBM2014-00137
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`2.
`
`The Claimed Solution to the Problem: A New GUI That
`Improved Speed and Usability
`
`To address the above problems, the inventors conceived the design of a novel
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`and non-obvious GUI tool (ultimately covered by the claims of the patent) that
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`improved upon the speed and accuracy of the prior art. Specifically, the novel solution
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`lies in specific structural and functional features of a GUI tool. In particular, the
`
`claims recite a combination of technical GUI features, including adjusting price levels
`
`of a static price axis and automatic re-positioning of the price axis based on bid/ask
`
`indicators that move within a predetermined distance from the top or bottom of the
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`displayed price axis. These structural and functional features of claim 1 of the ’055
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`patent that provide a solution to the convention GUI problems are depicted in the
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`chart below (which uses screenshots of TT’s MD Trader product to illustrate the
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`claims):
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`6
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`Case No. CBM2014-00137
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`
`
`Claim Elements
`
`Graphical User Interface Elements
`
`A method for
`
`
`
`repositioning a static
`
`price axis on a graphical
`
`user interface for
`
`displaying market
`
`information of a
`
`commodity being traded
`
`at an electronic
`
`exchange, the method
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`comprising:
`
`
`
`
`
`
`
`Static
`price axis
`on a
`graphical
`user
`interface
`
`7
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`receiving market
`
`information relating to a
`
`commodity from an
`
`electronic exchange via
`
`a computing device, the
`
`market information
`
`comprising an inside
`
`market with a current
`
`highest bid price and a
`
`current lowest ask price
`
`for the commodity;
`
`displaying a first
`
`plurality of price levels
`
`along a static price axis
`
`on a graphical user
`
`interface of a display
`
`device associated with
`
`the computing device,
`
`where the first plurality
`
`of price levels range
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`Case No. CBM2014-00137
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`First plurality of price levels along a static
`price axis ranging from a lowest value to a
`highest value
`
`Current
`highest
`bid price
`
`Current
`lowest ask
`price
`
`
`
`8
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`

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`from a lowest value to a
`
`highest value along the
`
`static price axis;
`
`in response to an input
`
`command received via
`
`an input device
`
`associated with the
`
`computing device,
`
`adjusting the first
`
`plurality price levels
`
`among a range of price
`
`levels to an adjusted
`
`plurality of price levels
`
`including the first
`
`plurality of price levels
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`Case No. CBM2014-00137
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`Static price
`axis at T1
`
`Input device
`used to
`expand price
`levels (e.g.,
`from 19 (at
`T1) to 25 (at
`T2))
`
`Static price
`axis at T2
`
`9
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`Case No. CBM2014-00137
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`Static price axis
`
`Highest value
`along the static
`price axis
`
`Ask display
`region
`comprising a
`plurality of
`locations
`
`Lowest value
`along the static
`price axis
`
`
`displaying a bid and ask
`
`display region on the
`
`graphical user interface,
`
`the bid and ask display
`
`region comprising a
`
`plurality of locations
`
`corresponding to the
`
`first plurality of price
`
`levels displayed along
`
`the static price axis,
`
`wherein each location
`
`corresponds to one of
`
`the first plurality of
`
`price levels, and
`
`wherein a number of
`
`the plurality of locations
`
`changes according to
`
`adjusting the first
`
`plurality of price levels;
`
`Bid display
`region
`comprising
`a plurality
`of locations
`
`10
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`Case No. CBM2014-00137
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`Static price axis
`
`FIG. 3 and 4
`of the ’055
`patent show
`ascending
`and
`descending
`
`
`
`displaying a first
`
`indicator representing a
`
`quantity associated with
`
`the current highest bid
`
`price at a first location
`
`in the plurality of
`
`locations of the bid and
`
`ask display region,
`
`wherein the first
`
`indicator ascends or
`
`descends the static price
`
`axis as changes in the
`
`current highest bid price
`
`occur as a result of each
`
`of the plurality of price
`
`levels along the static
`
`price axis not changing
`
`positions on the
`
`graphical user interface
`
`unless a reposition
`
`First
`indicator
`representing
`a quantity
`
`11
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`

`

`command is received;
`
`displaying a second
`
`indicator representing a
`
`quantity associated with
`
`the current lowest ask
`
`price at a second
`
`location in the plurality
`
`of locations of the bid
`
`and ask display region,
`
`wherein the second
`
`indicator ascends or
`
`descends the static price
`
`axis as changes in the
`
`current lowest ask price
`
`occur as a result of each
`
`of the plurality of price
`
`levels along the static
`
`price axis not changing
`
`positions on the
`
`graphical user interface
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`Case No. CBM2014-00137
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`Static price axis
`
`Second
`indicator
`representing
`a quantity
`
`FIG. 3 and 4 of
`the ’055 show
`Ascending and
`Descending
`
`
`
`12
`
`

`

`unless the reposition
`
`command is received;
`
`receiving the reposition
`
`command to reposition
`
`
`
`
`
`the static price axis
`
`when a designated price
`
`is within a designated
`
`number of price levels
`
`from the lowest value or
`
`the highest value along
`
`the static price axis; and
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`Case No. CBM2014-00137
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`Receiving
`reposition
`command when
`designated price
`(e.g., LTP) within
`designated number
`of price levels (e.g.,
`3 levels) from
`highest value (e.g.,
`2003.75)
`
`FIG. 16B of the ’055
`patent shows user
`setting
`predetermined price
`levels
`
`
`
`13
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`

`Case No. CBM2014-00137
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`responsive to receiving
`
`the reposition
`
`command, automatically
`
`repositioning the static
`
`price axis on the
`
`graphical user interface
`
`such that a current
`
`inside market price is
`
`displayed at a new
`
`desired location.
`
`Repositioning the
`static price axis
`from T1 to T2
`
`
`
`Current
`inside
`market price
`at T1
`
`Inside
`
`market price
`at new
`desired
`location at
`T2
`
`As explained in the patent, the above claimed combination of GUI features
`
`provides a tool that solves the problem with prior GUIs. See, e.g., Ex. 1001, 25:4-10.
`
`The novel tool uses a particular type of automatic re-positioning of the price axis
`
`functionality (triggered by a designated price coming within a designated number of
`
`price levels from the lowest value or the highest value along the static price axis)
`
`combined with other claimed structural and functional features of a GUI tool. See,
`
`e.g., id., claim 1. For example, the patent discloses that “[a] trader may use automatic
`
`positioning to always have a visual reference of where the market is trading.” Id.,
`
`26:30-31. The patent also explains that the prior art problem of indicators that move
`
`to undesired locations and in certain situations off the price axis all together, is
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`

`Case No. CBM2014-00137
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`addressed by the claimed combination due to the “track[ing]” nature of the re-
`
`positioning tool. Id., 25:4-10 (“the trading application tracks the market’s activity by
`
`automatically centering, for example, the inside market or the Last Traded Price
`
`(“LTP”) on the display with respect to a static axis or scale of prices.”) The patent
`
`shows how a user can select the number of price levels away from the top/bottom to
`
`be a trigger for the claimed automatic re-positioning command in FIG. 16B.
`
`This tracking uses GUI technology to trap the indicators of interest in a desired
`
`region and limit their potential movement. In particular, in the claimed technology,
`
`
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`15
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`

`Case No. CBM2014-00137
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`the indicators will be re-positioned to a desired location when they are about to enter
`
`into an undesired location or region. Id., claim 1. And the Federal Circuit recognized
`
`that that ’055 patent disclosed this solution. See Trading Techs. Int’l, Inc. v. Open E Cry,
`
`LLC, 728 F.3d 1309, 1316 (Federal Circuit recognizing that the specification
`
`specifically sets forth “A trader may use automatic positioning to always have a visual
`
`reference of where the market is trading.”).
`
`This solution was claimed in the combination of the “adjusting” and
`
`“repositioning” limitations, which were added to the claims to overcome a reference
`
`(TSE) that disclosed a different type of repositioning that was triggered based on
`
`market indicators moving a certain number of levels away from the center of the price
`
`column. Infra at Section V.B. The prior art type of repositioning caused a technical
`
`problem of re-positioning indicators of interest too early or too late if the number of
`
`price levels of the displayed price axis was adjusted. As a result, the claims specifically
`
`recite adjusting the number of price levels of the price axis that are displayed. For
`
`example, claim 1 recites “in response to an input command received via an input
`
`device associated with the computing device, adjusting the first plurality [of] price
`
`levels among a range of price levels to an adjusted plurality of price levels including
`
`the first plurality of price levels.” This part of the claim refers to “price levels”
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`previously recited in the claim as a “first plurality of price levels along a static price
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`axis on a graphical user interface . . . where the first plurality of price levels range from
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`a lowest value to a highest value along the static price axis.” Ex. 1001, 34:14-67. Thus,
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`Case No. CBM2014-00137
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`the claimed combination of GUI features addressed technical problems with a prior
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`art GUI tool experienced by some users. This combination was the examiner’s reason
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`for finding novelty and non-obviousness. Infra at Section V.
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`With respect to usability, the ability to track indicators and limit their
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`movement in a desired region solved the prior art problem. In particular, the claimed
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`technology was of particular benefit in volatile markets—i.e., those markets where
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`market information was changing rapidly and the indicators moved relatively quickly.
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`The ’055 patent describes these technological solutions as follows:
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`As quantities are entered and filled in the market, the LTP
`and inside market change to indicate the price of the last
`filled quantity and the most recent best buy and sell prices.
`In a volatile market, a large number of quantities can be
`filled in a relatively short period of time, resulting in a
`continuous fluctuation of the LTP and inside market. The
`LTP and the inside market are two indicators that a trader
`may use to understand at what prices other traders find a
`commodity to be most desirable. A trader may use
`automatic positioning to always have a visual reference of
`where the market is trading, increasing the likelihood of
`entering quantities and having those quantities filled at
`desirable prices.
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`Ex. 1001, 26:23-35.
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`Case No. CBM2014-00137
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`Accordingly, the claims are directed to a technological solution (a new GUI
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`design) that overcame a problem with prior technology (the old GUI design). Thus,
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`the claims are directed to a technological improvement, not an abstract idea or a
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`business process.
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`B. The Claimed Features and Functionality of the Improved GUI Are
`An Inventive Concept, Not Conventional.
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`Importantly, TD does not address the details of the claims. Rather, TD only
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`generalizes the claims. Pet. 13-14. TD ignores the substantive elements of the body of
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`the claims, which set forth detailed requirements for the structural and functional
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`features of the claimed GUI tool instead of merely a generic, non-particular GUI.
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`This results in a phantom claim that ignores inventive concepts that ensure that the
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`claim is to more than an abstract idea.
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`Addressed Elements
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`Resulting Phantom Claim
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`Case No. CBM2014-00137
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`The fact that the claims are directed to an improved GUI, rather than a generic
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`GUI, shows that the claims are not directed to an abstract idea and recite an inventive
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`concept beyond an abstract idea. The claims do not recite a generic GUI because all
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`Case No. CBM2014-00137
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`claims of the ’055 patent recite the features of the improved GUI.2 Supra at Section
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`II.A.2. None of the claims are merely directed to a method of “repositioning market
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`information on a graphical user interface.” Instead, the novel and non-obvious
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`elements of all of the claims are directed to the structure and makeup of a particular,
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`improved GUI tool. A novel and non-obvious GUI is not conventional.
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`As shown below, the combination of structural and functional GUI features is
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`why the claims were allowed over the prior art. Further, the claims not only recite
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`structural components, they also recite the make-up and placement of these features
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`relative to each other. TD fails to address any of these claim elements, alone or in
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`combination. For this reason alone, TD fails to meet its burden of proving the claims
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`ineligible under § 101.
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`1.
`The PTAB has the benefit of numerous decisions confirming the nature of the
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`The Claimed GUI Features Were the Inventive Contribution
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`invention was a specific, innovative GUI that improved prior GUIs—not trading
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`using a GUI in the abstract. For example, the Federal Circuit summarized this patent’s
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`parent as covering improved GUI software:
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`The patents claim software. . . . The software’s graphical
`user interface (“GUI”) includes “a dynamic display for a
`plurality of bids and for a plurality of asks in the market for
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`2 That the claims are written in method format is irrelevant. The method claims are
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`directed to the inventive features of the GUI tool and require that they be used.
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`Case No. CBM2014-00137
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`the commodity and a static display of prices corresponding
`to the plurality of bids and asks.” The claimed invention
`facilitates more accurate and efficient orders in this trading
`environment.
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`Trading Techs. Inst’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1345 (Fed. Cir. 2010). And the
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`district court in the CQG trial agreed. The Federal Circuit recognized that that ’055
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`patent disclosed another improvement. Id. at 1316 (Federal Circuit recognizing that
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`the specification specifically sets forth “A trader may use automatic positioning to
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`always have a visual reference of where the market is trading.”). And the claims’
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`specific way of re-positioning a static price axis and adjusting the number of price
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`levels of the displayed price axis were the distinguishing features that resulted in
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`allowance. See Ex. 1002, pp. 463-473 (RCE dated March 5, 2009 adding the adjusting
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`the price levels along the static axis element) and pp. 486 (NOA dated May 20, 2009
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`placing the case in condition for allowance). This is all that is needed to pass the § 101
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`threshold. For example, under the Alice test, claims directed to an “improve[ment to]
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`the functioning of the computer itself or effect an improvement in any other
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`technology or technical field” are patent eligible. Alice, 135 S.Ct. 2351. Similarly, the
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`Federal Circuit has applied Alice to find that when claims, “taken together as an
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`ordered combination, . . . recite an invention that is not merely the routine or
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`conventional use” of computers or the Internet, they pass the § 101 threshold. DDR
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`Holdings, 773 F.3d at 1259.
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`Case No. CBM2014-00137
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`Accordingly, the Courts and the PTO have confirmed that the claims are
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`directed to an improvement to a GUI, which is all that is needed under the controlling
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`law.
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`A New GUI Is New Technology
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`C.
`The subject matter of TT’s claims, GUIs, has long been recognized as a
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`technological field. For example, NASA includes a Human Systems Integration
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`Division3 that covers several “technical areas,” including the Human Computer
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`Interaction (HCI) Group, described as:
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`The Ames HCI Group contributes to the development of
`measurably better NASA software through careful
`application of HCI methods. We follow an iterative process
`that consists of user research, interaction design, and
`usability evaluation. It is commonly assumed that HCI is
`exclusively focused on the interface. We are focused on the
`users and their goals in order to build the right tool which
`means that we are focused on functionality as well as
`interface.
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`Ex. 2012. Moreover, many colleges offer science degrees in human-computer
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`interaction. Exs. 2013-2019. Furthermore, experts who have testified regarding the
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`claimed inventions, including experts of TD’s co-defendants in the district court, have
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`referred to the field of the invention as a technological field. Ex. 2202, PTX 6052-56.
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`3 Ex. 2012.
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`Case No. CBM2014-00137
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`The problems addressed by the claims are also technical because they relate to classic
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`engineering problems of efficiency, precision and usability. Indeed, the design and
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`function of a computer interface is often more important than the computer hardware
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`used to provide it.
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`The patent does not merely claim implementing a known business process or
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`generally displaying information on a generic computer. Rather, it details features and
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`functionality of a new GUI tool. Trading is merely the application of the new GUI
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`tool, but not what the claims are about. Thus, th