14_]une 2011
`
`'l'|1c European Patent Officc
`D~80298 l.\-'l'1'inche11
`
`Germany‘
`
`Dear Sirs,
`
`European Patent Applicatioil No. (}192t}183-.9
`Opposition to EP1319211
`Trading Technologies International, Inc.
`Om‘ rr_:fE_]l'7lV'/4 ?797OPP?‘
`
`
`
`\‘C"e attach our response to the communication pursuant to Article 101(1) and Rule
`81(2) to
`EPC elated 1 December 2010.
`
`Yours fai hf
`
`
`
`an Walaski
`
`
`
`
`orised Representative
`
`TDA 103
`
`T
`
`'trade V. T
`
`CBM
`
`-
`
`13
`
`
`
`0001
`
`TDA 1030
`TD Ameritrade v. TT
`CBM2014-00137
`
`

`
`Europaisches
`Patentamt
`European
`Patent Office
`
`Office europeen
`des brevets
`
`Sender:
`Jan Walaski
`Venner Shipley LLP
`20 Little Britain
`London EC1A 7DH
`United Kingdom
`
`Phone: (0)20 7600 4212
`Fax: (0)20 7600 4188
`E-mail: mail@vennershipley.co.uk
`
`Letter accompanying subsequently filed items
`
`80298 Munich
`Germany
`Tel. +49(0)89 2399-0 I Fax -4465
`
`P.O. Box 5818
`NL-2280 HV Rijswijk
`Netherlands
`Tel. +31(0)70 340-2040 I Fax -3016
`
`10958 Berlin
`Germany
`Tel. +49(0)30 25901-0 I Fax -840
`
`The document(s) listed below is (are) subsequently filed documents pertaining to the following application:
`
`Application number
`
`Applicant's or representative's reference
`
`Description of document
`1 Reply to examination report
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`2 Reply to examination report
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`3 Reply to examination report
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`4 Reply to examination report
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`5 Reply to examination report
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`6 Reply to examination report
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`7 Reply to examination report
`
`8 Reply to examination report
`
`9 Reply to examination report
`
`01920183.9
`
`JFW/419790PP1 I
`
`Original file name
`Exhibit TT1.PDF
`
`Exhibit TT2.PDF
`
`Exhibit TT3.PDF
`
`Exhibit TT4.PDF
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`Exhibit TT5.PDF
`
`Exhibit TT7.PDF
`
`20110614 Letter to EPO Munich
`417970PP1.PDF
`
`Exhibit TT6.PDF
`
`20110614-Response to communication
`417970PP1.pdf
`
`Assigned file name
`EXRE3-1.PDF
`
`EXRE3-2.PDF
`
`EXRE3-3.PDF
`
`EXRE3-4.PDF
`
`EXRE3-5.PDF
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`EXRE3-6.PDF
`
`EXRE3-7.PDF
`
`EXRE3-8.PDF
`
`EXRE3-9.pdf
`
`Signatures
`
`Place:
`Date:
`Signed by:
`
`Capacity:
`
`London
`14 June 2011
`/Jan Walaski/
`
`(Representative)
`
`0002
`
`

`
`Response to Communication Pursuant to Article 101(1) and Rule 81(2) to
`
`(3) EPC dated 1 December 2010 (the "Article 101(1) Communication")
`
`The proprietor's response to the Article 101(1) Communication is set out below using the
`
`same numbering as is used within that communication. We have also sought to address
`
`additional issues raised by Opponent I in its response dated 30 March 2011. However,
`
`where any point raised has not been specifically addressed, this should not be taken to
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`mean that we agree with Opponent I on that point.
`
`General
`
`As a general point, we note that the term "inside market" used in our application is a term
`
`of art that is understood by the skilled person as referring to the combination of the
`
`highest bid price and the lowest ask price (page 8, lines 2 to 3 of the application as filed).
`
`References by the Opposition Division to the "internal market" are therefore taken to be
`
`references to the "inside market".
`
`Article 100(c) EPC 1973- Added subject-matter
`
`The arguments raised by the Opposition Division with respect to the subject matter
`
`extending beyond the content of the application as filed are addressed below. We will also
`
`address certain generalisation issues in an expert declaration to be filed later.
`
`4.
`
`Article 100(c) EPC 1973- Independent claim 1
`
`4.1
`
`Display of market depth (deletion)
`
`We agree with the Opposition Division that claim 1 as granted does not extend beyond the
`
`content of the application as filed in relation to the fact that the feature of the display of
`
`the market depth in addition to the inside market is not recited in claim 1.
`
`We note that Opponent I has made no further comment on this point.
`
`1
`
`0003
`
`

`
`4.2
`
`"Field of static prices"
`
`We agree with the Opposition Division that claim 1 as granted does not extend beyond the
`
`content of the application as filed with respect of the use of the term above.
`
`We note that Opponent I has made no further comment on this point.
`
`4.3
`
`First and second indicators
`
`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
`
`beyond the content of the application as filed on the basis that this is an impermissible
`
`generalisation of the embodiments illustrated in Figures 3 and 4, in which the display of the
`
`inside market is allegedly intimately tied to the display of bid and ask quantities.
`
`The first and second indicators show the best prices, namely, the best bid price and the
`
`best ask price. They do this by placing some sort of indication at a location in alignment
`
`with the best bid price and the best ask price in the field of static prices. For instance, the
`
`paragraph bridging pages 7 and 8 of the application as filed describes that the "inside
`
`market" is the highest bid price and the lowest ask price. The paragraph bridging pages 14
`
`and 15 of the application goes on to state that "[t]he inside market and market depth
`
`ascend and descend as prices in the market increase and decrease." The paragraph
`
`continues: "[m]arket depth similarly ascends and descends the price column, leaving a
`
`vertical history of the market." The same paragraph states: "Figure 4 shows a screen
`
`displaying the same market as that of Figure 3 but at a later interval where the inside
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`market, cells 1101, has risen three ticks." The application continues to state throughout
`
`that the market "ascends and descends" the price column. In addition, the second full
`
`paragraph at page 15 of the application states: "Just as the market ascends and descends the
`
`vertical Mercury display shown in Figures 3 and 4, the market will move left and right in
`
`the horizontal Mercury display." (emphasis added). At least based on Figures 3 and 4 of
`
`the application as filed, a user will see the indicators associated with the inside market being
`
`moved - these are the claimed movable indicators and the application as filed, and the
`
`figures, describe this movement.
`
`2
`
`0004
`
`

`
`It is not the actual numbers that move between the cells of the display. Opponent I
`
`supports that in paragraph 14 of the Opponent I's response. (see, e.g., "However, the bid
`
`quantity 18 which represents the quantity of bids at price 89 does not move."). Rather, it is
`
`the indication aligned with a price that moves. An analogy can be drawn with the mercury
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`rising and falling in a thermometer to indicate whether the temperature has gone up or
`
`down, without the need to look at the precise temperature values. Because the particular
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`numbers are not actually moving (changing positions), it is the indicators that allow the
`
`user to see the market movement (e.g., as the best bid price indicator or the best ask price
`
`indicator moves up or down in the vertical example). Furthermore, the references in the
`
`application as filed to the market moving in the display as the inside market prices increase
`
`and decrease provide an explicit disclosure of the movable indicators rather than movable
`
`numbers.
`
`The Opposition Division in the fifth paragraph on page 18 of the Article 101(1)
`
`Communication states (emphasis added):
`
`In this embodiment, there is no explicit display of the internal market but the
`
`user can identify the internal market by identifying the highest price in the
`
`price column 1004 for which a bid quantity is displayed in the BidQ column
`
`1003 and the lowest price in the price column for which an ask quantity is
`
`displayed in the AskQ column 1005.... The internal market is thus conveyed
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`to the user in an implicit manner on the basis of the display of the bid and
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`ask quantities in the BidQ and the AskQ columns and their relative positions
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`with respect to the prices in the price column.
`
`While the Opposition Division is using the term "convey" in the paragraph quoted above,
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`it could equally well have used the term "indicate". Additionally, displaying the quantities
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`is not even necessary to convey the inside market.
`
`While a number (here quantity) itself gives some information, the presence or absence of
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`the number in a cell also provides information that is separate from the value of the
`
`number and is capable of indicating the highest or lowest bid/ ask price. We submit that it
`
`3
`
`0005
`
`

`
`is the presence or the absence that is the indicator in the application as filed, not the
`
`number itself. To illustrate, consider, if the numbers in the bid quantity column and the
`
`ask quantity column were simply replaced by blocks of the same colour, the information
`
`about the corresponding highest and lowest price levels would not be lost, since the point
`
`at which the blocks turn to blank cells still indicates the inside market 1101 in Figure 4.
`
`The originally filed dependent Claim 5 supports using blocks of different colours, because
`
`it recites bids and asks being displayed using different colours. Therefore, it is fair to say
`
`that the application discloses a first indicator at a first area aligned with a first price level
`
`and a second indicator at a second area aligned with a second price level, the price levels
`
`representing the current highest bid and lowest ask price. We submit that use of the term
`
`indicators is far more accurate to describe the market movement in the display, because bid
`
`and ask quantities do not technically move on the screen.
`
`The originally filed independent claims did not recite the limitation of quantities. Rather,
`
`for example, independent claim 1 states "displaying a plurality of bids" and "displaying a
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`plurality of asks". When read in view of original dependent claim 4, which requires bid and
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`ask quantities being displayed, the use of "bids" and "asks" in original claim 1 indicates that
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`the actual quantities and the numbers themselves do not have to be displayed. This clearly
`
`provides support for the "first indicator" and the "second indicator" because limiting the
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`display of the inside market to the display of bid and ask quantities would render the
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`language of claim 4 meaningless. Thus, what is displayed along an axis does not have to be
`
`quantities, making the use of the first and second indicators to represent the inside market
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`consistent with the originally filed claims. Independent claim 22 further supports this, as it
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`recites "a dynamic display of a plurality of bids and a plurality of asks, including the bid and
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`ask quantities of the commodity", also making clear that the displayed plurality of bids and
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`asks can include, but is not the same as, quantities.
`
`The Opposition Division notes that "claims 1, 8 and 15 do not specify that bid and ask
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`quantities are displayed, they do also not contain any feature directed to how the internal
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`market is displayed and cannot therefore support the generalisation." We disagree, as the
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`originally filed claims (e.g., claim 1) can be read to include displaying bids and asks at the
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`inside market and away from the inside market.
`
`4
`
`0006
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`

`
`The application as filed defines the inside market as "the highest bid price and the lowest
`
`ask price." (see, e.g., the paragraph bridging pages 7 and 8). The application defines the
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`market depth as "the order book with the current bid and ask prices and quantities." (see,
`
`e.g., Id.) Thus, market depth is additional information beyond the inside market and
`
`includes quantities at the inside market. It is clear based on the application that displaying
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`the "market depth" and thus bid/ ask quantities at the inside market is not the key feature
`
`of the claimed invention. The second full paragraph at page 8 of the application as filed
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`states: "Some exchanges supply an infinite market depth, while others provide no market
`
`depth .... " (emphasis added). The Opposition Division agrees that the present invention
`
`does not need to display the market depth at all. (see, e.g., Section 4.1 ). If no market
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`depth is received from an exchange, the indicators associated with the inside market, i.e.,
`
`the current highest bid price and the current lowest ask price, are provided to show the
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`market ascend and descend as prices in the market increase and decrease. Thus, the
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`application as filed provides an explicit disclosure of the first and second indicators
`
`associated with the inside market.
`
`In conclusion, we submit that the use of the term "first and second indicators" is directly
`
`derivable from the application as filed and is not an impermissible generalisation.
`
`4.4
`
`Display of bid and ask quantities (deletion)
`
`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
`
`beyond the content of the application as filed in relation to the failure to recite the display
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`of bid and ask quantities in association with the display of the inside market.
`
`The Opposition Division refers to the fact that granted claim 1 contains features directed
`
`to the display of the inside market which may be seen as representing an intermediate
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`generalisation between original independent claim 15 and the embodiment illustrated by
`
`Figures 3 and 4, because claim 1 does not also mention the display of bid and ask quantities.
`
`We disagree at least based on the arguments presented in relation to Section 4.3 above.
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`5
`
`0007
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`

`
`Additionally, the Opposition Division agrees in relation to Section 4.1 that it is entirely
`
`clear from page 8, lines 13 to 17 of the application as filed that the present invention does
`
`not need to display the market depth at all. Clearly, it cannot display the market depth if
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`the market depth is not provided by an exchange. Further, lines 16 to 17 make it clear that
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`the user can choose how far into the market depth to display, which would implicitly
`
`suggest that the user can choose not to display any of the market depth. Therefore, it is
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`not an intermediate generalisation to replace market depth with the inside market in claim 1,
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`without also requiring a display of the associated bid and ask quantities.
`
`4.5
`
`Update of the display of the first and second indicators
`
`We agree with the conclusion of the Opposition Division that claim 1 as granted does not
`
`extend beyond the content of the application as filed in this respect, in particular in relation
`
`to the update happening "in response to" new data.
`
`Opponent I comments at paragraph 13 that there is no "visual aid" to assist in determining
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`where the inside market is. This is manifestly incorrect, as is apparent from a comparison
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`of the displays in Figures 3 and 4 of the application as filed that the movement has clearly
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`occurred between these Figures. The clear visual difference between Figures 3 and 4 also
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`negates the idea expressed by Opponent I at paragraph 10, that it is only the user's own
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`knowledge that identifies the inside market. A skilled person (or for that matter an entirely
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`unskilled person) asked to look at the BidQ, AskQ and Pre regions in Figures 3 and 4
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`would have no difficulty in pointing to the key difference between these displays.
`
`Additionally, the application clearly teaches the importance of visually aiding the user in
`
`seeing where the inside market is. As stated in relation to Section 4.3 above, the paragraph
`
`bridging pages 14 and 15 of the application states that the inside market (and the market
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`depth) ascends and descends as prices in the market increase and decrease. The application
`
`continues: "Just as the market ascends and descends the vertical Mercury display shown in
`
`Figures 3 and 4, the market will move left and right in the horizontal Mercury display."
`
`(see, e.g., the second full paragraph at page 15).
`
`Opponent I further comments at paragraph 14 that "with reference to Figures 3 and 4
`
`which show a market depth, there are no indicators which move relative to the field of
`
`6
`
`0008
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`

`
`static prices - the patentee implies that the bid and ask quantities might be moving
`
`indicators, but whilst the bid and ask quantities are updated, they do not move." Based on
`
`the arguments presented in relation to Section 4.3 above, we agree that the actual numbers
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`associated with the bid and ask quantities are not moving. In fact, what is actually moving
`
`is the "indicators", as claimed. The step of updating makes it even more evident that the
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`use of the first and second indicators to show the market movement is directly derivable
`
`from the application as filed.
`
`Finally, the comments in paragraphs 13 to 15 of Opponent I's response regarding the
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`requirement for "movement" of the indicators would appear to be excessively pedantic.
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`They should be compared with the arguments in paragraph 51, where the opponent has no
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`difficulty with a character "moving" across the screen, despite the fact that pixels do not
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`physically move, just appear and disappear in a given location.
`
`4.6
`
`"Means for setting a trade order parameter"
`
`We agree with the conclusion of the Opposition Division that claim 1 as granted does not
`
`extend beyond the content of the application as filed in relation to this feature.
`
`We note that Opponent I has made no further comment on this point.
`
`4. 7
`
`Areas of the order entry region
`
`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
`
`beyond the content of the application as filed in that the areas of the order entry region are
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`not stated to be in the dynamic display of bid and ask quantities.
`
`The essential feature of the claimed invention in relation to order entry is that the selected
`
`area is aligned with a price level, since this gives rise to the technical effect of increasing
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`the likelihood of entering orders at desired prices. The application as filed includes many
`
`examples describing the requirement of clicking on a row that corresponds to or is aligned
`
`with a desired price without requiring that the selected area is directly in the display of bid
`
`and ask quantities. The application as filed describes:
`
`7
`
`0009
`
`

`
`•
`
`"Using the right mouse button, an order would be sent to market at the price that
`
`corresponds to the row clicked." (see, e.g., first full paragraph at page 17)
`
`•
`
`"If the trader chose a number value in the quantity description, a left click would
`
`send an order to market for the current quantity chosen by the trader." (see, e.g.,
`
`the third full paragraph at page 18)
`
`•
`
`"A left click would enter an order with a price corresponding to the price row
`
`clicked .... " (see, e.g., the second full paragraph at page 18)
`
`•
`
`"[T]he system will determine that the total quantity for the trade order will be the
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`value of the R field ... plus all quantities in the market for prices better than or equal
`
`to the price in the row clicked." (see, e.g., the paragraph bridging pages 19 and 20)
`
`The application provides examples of placing orders by clicking in the "BidQ" column or
`
`the "AskQ" column. However, even with respect to the provided examples, the application
`
`makes it clear that what is essential in relation to the claimed order entry is that there is a
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`click in a location aligned with the desired price (e.g., in the row that corresponds to the
`
`desired price). The application as filed describes:
`
`•
`
`"A left click on the 18 in the BidQ column 1201 will send an order to market to sell
`
`17 lots ... of the commodity at a price of 89 (the corresponding price in the Pre
`
`column 1204) ." (see the paragraph bridging pages 16 and 17)
`
`•
`
`"Thus, a left click in the BidQ column 1201 in the 92 price row will send a buy
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`order to market at a price of 92 .... " (see the paragraph bridging pages 17 and 18);
`
`•
`
`"In other words, in the example of a right click in the AskQ column 1202 in the 87
`
`price row .... " (see, the first full paragraph at page 18)
`
`•
`
`"If AskQ was clicked, ... the system sends a sell limit order to the market at the
`
`price corresponding to the row .... " (see the first full paragraph at page 20)
`
`•
`
`"If BidQ Was clicked, ... the system sends a buy limit order to the market at the
`
`price corresponding to the row .... " (see the first full paragraph at page 20)
`
`At least based on the application as filed and the sections cited above, the skilled person
`
`would understand that what is important is that the selected area is aligned with a price
`
`level.
`
`8
`
`0010
`
`

`
`Therefore, it is not an intermediate generalisation that the areas of the order entry region
`
`are not stated to be in the dynamic display of bid and ask quantities or in the same location
`
`as the first and second indicators, because what is essential in relation to the claimed order
`
`entry is that the selected area is in a location aligned with the desired price.
`
`4.8
`
`"User input means" I pointer, single action
`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
`
`beyond the content of the application as filed on the basis that the single action of the user
`
`input device is not specified.
`
`The feature of claim 1 defines that each area that is aligned with a price level is selectable
`
`by user input means and the selection of the area sends an order message to the electronic
`
`exchange based on the aligned price levels. Specifying that "selection" of the area "sends"
`
`an order message clearly does not cover clicking in an area aligned with a price and then a
`
`user moving a pointer to a send button in a pop-up window to send the order.
`
`We agree with the conclusion of the Opposition Division that any user input means with
`
`which an area of the screen can be selected can be used in the invention. Opponent I's
`
`argument at paragraphs 25 to 30 again represents an overly pedantic analysis. The wording
`
`at page 6, line 27 to page 7, line 2 of our application clearly discloses that the input device
`
`is not limited to a mouse and it would be an unreasonably strained reading of the disclosure
`
`to limit the input device to a pointer device.
`
`4.9
`
`Order entry region I "trade order characteristic setting component"
`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
`
`beyond the content of the application as filed in relation to this feature.
`
`We submit that the invention relates to "increase[ing] the speed of trading and the
`
`likelihood of entering orders at desired prices with desired quantities", as explained at page
`
`12, lines 29-31 of the application as filed. While the determination of whether the order is
`
`a buy order or a sell order is important in the commercial embodiment, this should not be
`
`9
`
`0011
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`

`
`confused with the definition of the essential features of the claimed invention in relation to
`
`order entry.
`
`We submit, as explained in relation to section 4.7 above, that for claims reciting the order
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`entry region, the defining quality of that region is the alignment between selected areas and
`
`the corresponding price levels. The position of the pointer in the bid or ask display areas
`
`with respect to placing a buy order and a sell order is set out in the original dependent
`
`claim 36. More specifically, dependent claim 36 recites that the order is a buy order "if the
`
`position of the pointer ... is within the display of bids," and that the order is a sell order "if
`
`the position of the pointer ... is within the display of asks." It is therefore entirely clear
`
`that the reference to the position of the pointer in the original claim 35 refers to its
`
`position in relation to the price level.
`
`5.
`
`Article 100(c) EPC 1973- Independent claims 29 and 53
`
`We disagree with the opinion of the Opposition Division for the same reasons already
`
`discussed above in relation to claim 1.
`
`6.
`
`Article 100(c) EPC 1973- Dependent claims
`
`6.1
`
`Claim 3: "order type"
`
`We disagree with the conclusion of the Opposition Division that granted claim 3 extends
`
`beyond the content of the application as filed, which appears to be based on a strained
`
`reading of the claim. On an ordinary reading of the claim, claim 3 says no more than that
`
`the order specifies a price and whether the order is a buy order or a sell order. Original
`
`claim 35 also broadly states that the position of the pointer is "over an area in said dynamic
`
`display of bids and asks", which does not, on a similarly strained reading, exclude the
`
`possibility that another type of order other than those in claim 36 is selectable in the
`
`specified area.
`
`We will further clarify that the order type is a buy or sell by amendment in the requests
`
`filed in response to the expected summons to attend oral proceedings.
`
`10
`
`0012
`
`

`
`6.2
`
`Claims 5, 6, 34, 35: re-centering command/ action of the user input device
`
`We agree with the conclusion of the Opposition Division that the claims mentioned above
`
`do not extend beyond the content of the application as filed.
`
`As will be presented in relation to section 16 below, we disagree with the Opposition
`
`Division's comments regarding the interpretation of the term "static." We also note that if
`
`there is an issue whether re-centering should be limited to manual re-centering, the issue
`
`should be restricted to the dependent claims that are specifically directed to re-centering.
`
`6.3
`
`Claims 8 and 47: areas in which the indicators are displayed
`
`We disagree with the conclusion of the Opposition Division that these claims extend
`
`beyond the content of the application as filed. On the assumption that the recital of
`
`indicators is permitted as argued in relation to Section 4.3 above, then these claims merely
`
`recite that the first indicator is displayed in one of the areas of the bid display region (for
`
`example, the cells 1003 in Figure 3) and the second indicator is displayed in one of the
`
`areas of the ask display region (for example, the cells 1004 in Figure 3). Claim 1 of the
`
`patent already recites that the first indicator is associated with the current highest bid price
`
`and the second indicator with the current lowest ask price, and these claims do not alter
`
`that - the indicators are displayed in any of the cells depending on the highest bid/lowest
`
`ask price.
`
`6.4
`
`Claim 13: horizontally oriented regions comprising columns (by dependency)
`
`We will address this objection by amendment in the requests filed in response to the
`
`expected summons to attend oral proceedings.
`
`6.5
`
`Claims 14, 15, 50 and 51: Bid/ ask display regions overlapping order entry
`
`region
`
`We will address this objection by amendment in the requests filed in response to the
`
`expected summons to attend oral proceedings.
`
`11
`
`0013
`
`

`
`6.6
`
`Claims 22, 23 and 44: "last trade indicator"
`
`We disagree with the conclusion of the Opposition Division that these claims extend
`
`beyond the content of the application as filed. We refer to the arguments presented with
`
`respect to Section 4.3.
`
`Additionally, we submit that Figure 3 clearly shows the LTQ column which can fairly be
`
`considered to be "means for displaying a last trade indicator in association with the field of
`
`static prices", as claimed in claim 22. Page 13, lines 18 to 20 of the application as filed
`
`state: "The LTQ column 1006 shows the last traded quantity of the commodity. The
`
`relative position of the quantity value with respect to the Price values reflects the price at
`
`which that quantity was traded" (emphasis added). This makes it entirely clear that it is not
`
`just the number itself that provides information, as discussed in reference to Section 4.3
`
`above, but the relative position of the values, so supporting the term "indicator" and
`
`meaning that none of the above claims extend beyond the content of the application as
`
`filed.
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`Therefore, we submit that the use of the term "last trade indicator" is directly derivable
`
`from the application as filed and is not an impermissible generalisation.
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`6. 7
`
`Claim 25: first and second indicators comprise numbers
`
`We disagree with the conclusion of the Opposition Division that this is an unallowable
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`generalisation on the basis that the application does not disclose numbers other than bid
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`and ask quantities. The specification clearly gives an example in which the indicators are
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`numbers.
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`Additionally, we submit the resolution of this issue is dependent upon the resolution of the
`
`issue raised in Section 4.3 and we refer to the arguments presented in relation to Section
`
`4.3 above.
`
`12
`
`0014
`
`

`
`6.8
`
`Claim 28: portion of field of static prices displayed in column / dependencies
`
`We will address this objection by amendment in the requests filed in response to the
`
`expected summons to attend oral proceedings.
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`7.
`
`Summary
`
`In the light of the above arguments and the proposed amendments to be made in requests
`
`filed in response to the expected summons to attend oral proceedings, we submit that the
`
`objections relating to the subject matter extending beyond the content of the application as
`
`filed have been or will be overcome. However, we reserve the right to make further
`
`amendments in requests submitted in response to the expected summons.
`
`8.
`
`Article 100(b) EPC 1973- Sufficiency of disclosure
`
`This issue will be dealt with by amendment to claims 13 and 28.
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`9.
`
`Article 100(a) EPC 1973- Exclusion from patentability
`
`We agree with the Opposition Division that the subject matter of claims 1 to 53 has
`
`technical character and is not excluded from patentability and, in particular, that the
`
`claimed invention has features that contribute to technical character in addition to the basic
`
`technical features resulting from the use of a computer.
`
`As was mentioned at paragraph 6 of Annex B in our letter of 3 October 2006 in response
`
`to the Notices of Opposition, the issues of technical character were discussed at length at
`
`the examination oral proceedings held on 30 June 2004. The Opposition Division is now
`
`applying case law that has developed over the last 10 years, but the principles of which have
`
`not fundamentally changed over that period. We agree with the determinations of both the
`
`Examination Division (based on a thorough examination) and the Opposition Division
`
`(based on the developed case law), that the invention demonstrates the necessary technical
`
`character.
`
`Opponent I argues that the invention does not provide sustained man-machine interaction,
`
`supporting this argument with inappropriate analogies to a video game (T928/03 (Konami)).
`
`The Opposition Division correctly identified the sustained man-machine interaction
`
`13
`
`0015
`
`

`
`context that the present invention operates in is trading on an electronic exchange. Of
`
`course the nature and frequency of inputs in the electronic trading context is different than
`
`that in a video game. That does not change the fact that a user engaged in electronic
`
`trading using the invention is necessarily involved in a sustained man-machine interaction.
`
`10.
`
`Priority claims
`
`Given the Opposition Division's view that the claim to priority from P1 is not critical to
`
`the assessment of novelty and inventive step, there would appear to be no basis for
`
`deciding that the application is not entitled to the priority of P1.
`
`We agree with the Opposition Division that the claim to priority from P2 is valid if the
`
`claims comply with the requirements of Articles 123(2) EPC and on the basis of our
`
`submission that the claims do indeed comply with these requirements.
`
`11.
`
`State of the art
`
`In the Article 101(1) Communication, the Opposition Division requested further proof of
`
`the fact that certain documents were made available to the public before the priority date of
`
`the Patent. Only Opponent I responded. In its response, Opponent I has provided
`
`extracts from depositions made in the US litigation as evidence of these alleged facts. As
`
`will be explained in detail below, much of this evidence is based on testimony of interested
`
`parties supporting the existence and distribution of documents. The opponents have not
`
`provided any evidence from independent third-parties who allegedly received such
`
`documents or can support the allegations that the documents are prior art. Given the
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`extensive nature of the US discovery process (approximately 145 depositions were taken
`
`during the US litigation), it would be expected that such independent third-party evidence
`
`and corroboration would have been found if the documents were indeed put into the public
`
`domain in the way suggested. Consequently, whether these documents have been shown to
`
`be prior art comes down to a battle of deposition evidence and we submit that the
`
`opponents have not met their burden to demonstrate the alleged public availability of these
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`documents.
`
`14
`
`0016
`
`