UNITED STATES PATENT AND TRADEMARK OFFICE
`
`APPLICATION NO.
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`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
`
`I ATTORNEY DOCKET NO. I CONFIRMATION NO.
`
`90/011,250
`
`09122/2010
`
`6772132
`
`049506/296191
`
`3537
`
`12114/2010
`7590
`39310
`MBHBffRADING TECHNOLOGIES
`300 SOUTH WACKER DRIVE
`SUITE 3200
`CHICAGO, IL 60606
`
`EXAMINER
`
`ART UNIT
`
`PAPER NUMBER
`
`DATE MAILED: 12114/2010
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`Pro-90C (Rev. 10/03)
`
`Page 1 of 24
`
`TRADING TECH EXHIBIT 2065
`CQG & CQGT v. Trading Technologies
`CBM2015-00057
`
`
`
`APPLICATION NO.
`
`FILING DATE
`
`FIRST NAMED INVENTOR
`
`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
`
`I ATTORNEY DOCKET NO. I CONFIRMATION NO.
`
`90/011,250
`
`09122/2010
`
`6772132
`
`049506/296191
`
`3537
`
`12114/2010
`7590
`39310
`MBHBffRADING TECHNOLOGIES
`300 SOUTH WACKER DRIVE
`SUITE 3200
`CHICAGO, IL 60606
`
`EXAMINER
`
`ART UNIT
`
`PAPER NUMBER
`
`DATE MAILED: 12114/2010
`
`Please find below and/or attached an Office communication concerning this application or proceeding.
`
`Pro-90C (Rev. 10/03)
`
`Page 1 of 24
`
`TRADING TECH EXHIBIT 2065
`CQG & CQGT v. Trading Technologies
`CBM2015-00057
`
`
`
`Commissioner for Patents
`United States Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`'t./l/INN.U$pto.gov
`
`DO NOT USE IN PALM PRINTER
`
`(THIRD PARTY REQUESTER'S CORRESPONDENCE ADDRESS)
`
`Walter Scott
`Alston & Bird LLP
`101 South Tryon Street Suite 4000
`Charlotte, NC 28280-4000
`
`EX PARTE REEXAMINATION COMMUNICATION TRANSMITTAL FORM
`
`REEXAMINATION CONTROL NO. 901011.250.
`
`PATENT NO. 6772132.
`
`ART UNIT 3992.
`
`Enclosed is a copy of the latest communication from the United States Patent and Trademark
`Office in the above identified ex parte reexamination proceeding (37 CFR 1.550(f)).
`
`·Where this copy is supplied after the reply by requester, 37 CFR 1.535, or the time for filing a
`reply has passed, no submission on behalf of the ex parte reexamination requester will be
`acknowledged or considered (37 CFR 1.550(g)).
`
`PTOL-465 (Rev.0?-04)
`
`Page 2 of 24
`
`
`
`Order Granting I Denying Request For
`Ex Parte Reexamination
`
`Control No.
`
`90/011,250
`Examiner
`
`Sam Rimell
`
`Patent Under Reexamination
`
`6772132
`Art Unit
`
`3992
`
`--The MAILING DATE of this communication appears on the cover sheet with the corre~pondence address--
`
`The request for ex parte reexamination filed 22 September2010 has been considered and a determination
`has been made. An identification of the claims, the references relied upon, and the rationale supporting the
`determination are attached.
`
`Attachments: a)D PT0-892,
`b)~ PTO/SB/08,
`1. D The· request for ex parte reexamination is GRANTED.
`
`c)~ Other: Decision
`
`RESPONSE TIMES ARE SET AS FOLLOWS:
`
`For Patent Owner's Statement (Optional): TWO MONTHS from the mailing date of this communication
`(37 CFR 1.530 (b)). EXTENSIONS OF TIME ARE GOVERNED BY 37 CFR 1.550(c).
`
`For Requester's Reply (optional): TWO MONTHS from the date of service of any timely filed
`Patent Owner's Statement (37 CFR 1.535). NO EXTENSION OF THIS TIME PERIOD IS PERMITTED.
`If Patent Owner does not file a timely statement under 37 CFR 1.530(b), then no reply by requester
`is permitted.
`
`2. ~ The request for ex parte reexamination is DENIED.
`
`This decision is not appealable (35 U.S. C. 303(c)). Requester may seek review by petition to the
`Commissioner under 37 CFR 1.181 within ONE MONTH from the mailing date of this communication (37
`CFR 1.515(c)). EXTENSION OF TIME TO FILE SUCH A PETITION UNDER 37 CFR 1.181 ARE
`AVAILABLE ONLY BY PETITION TO SUSPEND OR WAIVE THE REGULATIONS UNDER
`37 CFR 1.183.
`
`In due course, a refund under 37 CFR 1.26 ( c ) will be made to requester:
`a) D by Treasury check or,
`b) [ZJ by credit to Deposit Acc~unt No. 160605, or
`c) D by credit to a credit card account, unless otherwise notified (35 U.S.C. 303(c)). ·
`
`,.
`
`1
`
`/Sam Rimell/
`Primary Examiner, Art Unit 3992
`cc:Reauester {if third oartv reauester)
`U.S. Patent and Trademark Office
`PTOL-471 (Rev. 08-06)
`
`Office Action in Ex Parte Reexamination
`
`Part of Paper No. 20101116
`
`I
`
`I
`
`Page 3 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 2
`
`DECISION ON REQUEST FOR EX PARTE REEXAMINATION
`
`A request for reexamination affecting claims 1-2, 8, 14, 20, 22-23, 25, 27-28, 30, 32-33,
`
`37-38, 40, 42-43, 47-48 and 53 of US Patent 6,772,132 has been received and considered. No
`
`substantial new questions of patentability have been raised by the request. Detailed rationale for
`
`this finding is set forth in this action.
`
`References Asserted by Requester as Raising
`Substantial New Questions of Patentability
`
`• U.S. Pre-Grant Publication 2003/0097325 to Friesen et al, published May 22, 2003 and
`
`filed April 9, 1999.
`
`• U.S. Patent 5,297,031 to Gutterman et al, published March 22, 1994 and filed March 6,
`
`1990.
`
`• U.S. Patent 7,212,999 to Friesen et al, published May 1, 2007 and filed April 9, 1999.
`
`• LIFFE. The Application Program Interface (API) reference manual for LIFFE
`
`CONNECT, September 1998, Release 3.1, published by LIFFE, London England (hereafter
`
`referred to as LIFFE CONNECT).
`
`• Swiss Exchange SWX, Swiss Exchange SWX TS User Manual, Version 2.1, December
`
`31, 1998, published by Swiss Exchange SWX (hereafter referred to as SWX Manual).
`
`Availability of Asserted References as Prior Art
`
`The references to LIFFE and SWX Manual were published prior to March 2, 2000
`
`effective filing date ofU.S. Patent 6,772,132. Accordingly, these references are available as prior
`
`art under 35 USC 1 02(a).
`
`Page 4 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 3
`
`The reference to Gutterman et al was published more than one year prior to the March 2,
`
`2000 effective filing date of U.S. Patent 6,772,132 and thus is available as prior art under 35
`
`usc 102(b).
`
`The r:eferences to Friesen et al ('325) and Friesen et al ('999) were filed prior to the
`
`March 2, 2000 effective filing date of U.S. Patent 6, 772,132 and thus are available as prior art
`
`under 35 USC 102(e).
`
`Summary of Prosecution History for U.S. Patent 6,772,132
`
`• U.S. application 09/590,692 was filed June 9, 2000.
`
`• A non-final office action was mailed by USPTO on June 8, 2001. Claims 1-21 were
`
`withdrawn. Claims 22-40 were rejected under 35 USC 112, second paragraph. Claims 22-40
`
`were rejected under 35 USC 102(e)/103(a) in view ofwww.tradingteclmologies.com.
`
`• Applicant submitted a response with remarks on October 9, 2001. Claims 1-21 were
`
`cancelled. Claims 22, 23, 30 and 36 were amended. Claims 41-88 were added.
`
`• A Notice of Allowance was issued by USPTO on July 13, 2002. Claims 71-88 were
`
`indicated as cancelled. Claims 22-70 were indicated as allowed. The attached correspondence
`
`includes an initialed form PTO 1449 signed January 9, 2002. Reasons for patentability stated:
`
`"The prior art fails to teach a method of placing a trade order, computer readable
`
`medium with instructions for placing a trade order, and/or a client system for placing a trade
`
`order comprising a dynamic display and a static display. The static display, directed to the
`
`commodity price, does not change. In contrast, the values of the bid/ask, reflecting the market
`
`depth for the commodity, are dynamically displayed and are aligned with the corresponding
`
`Page 5 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 4
`
`static price values. Theses features in combination with the claimfeatures of claims 22,29 and/or
`
`35 render the claims allowable.
`
`PCT W099/23099 is representative of the closest Foreign Patent prior art. The closet US
`
`Patent prior art and Non Patent Literature prior art are of record."
`
`• Applicant submitted an information disclosure statement, petition for withdrawal from
`
`issue and Request for Continued Examination (RCE) on November 12, 2002.
`
`• USPTO mailed a Decision Granting Petition on November 13, 2002.
`
`• Applicant submitted a response with remarks on March 21, 2003. Claims 22, 23, 29,
`
`30, 35, 36 and 37-40 were amended. Claims 89-95 were added.
`
`• USPTO mailed a Notice of Allowance on February 10, 2004. Claims 22-70 and 89-95
`
`were indicated as allowed. A summary of the reasons for allowance are as follows:
`
`"The primary reason for allowance is the limitation directed to the "dynamic display" of
`
`a plurality of the quantity of bids and asks aligned with a "static display" of corresponding
`
`prices. Here, unlike the prior art, the "static" display of prices is just that, static, and does not
`
`move in response to a change in the inside market. With this display of market depth, claimed in
`
`each of the independent claims, a trader places a trade order with the pointer in the area of the
`
`order entry region of the dynamic market depth region, through a single computer implemented
`
`action, see Figures 3 and 4. For example, in figure 3, a click on Bid Q 18 will send an order to
`
`the market to sell 17 lots of the commodity at a price of 89.
`
`Page 6 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 5
`
`The closest prior art including US Patent 6,408,282, PCT WO 01/16852 and commonly
`
`owned non-patent literature ''X Trader" (see, applicant's response to USPTO's request for
`
`information) all lack this feature."
`
`Reexamination Proceeding 90/008,576:
`
`• A request for reexamination of US Patent 6,772,132 was filed May 25,2007.
`
`• An order for reexamination of claims 1-56 of US Patent 6,772,132 was mailed by the
`
`USPTO on August 1, 2007.
`
`• A Notice of Intent to Issue Reexamination Certificate (NIRC) was mailed by USPTO
`
`on January 16, 2008. The action included a statement that reads as follows:
`
`"The following
`
`is an examiner's statement of reasons for patentability and/or
`
`confirmation of the claims found patentable in this reexamination proceeding: The prior art of
`
`record fails to teach a method, computer readable medium, or a system having a dynamic
`
`display of bids and asks in a commodity market aligned with a static display of prices
`
`corresponding thereto, wherein the static display of prices does not move in response to a
`
`change in the inside market in combination with the other claim limitations in independent
`
`claims 1, 8 and 14. Dependent claims 2-7, 9-13, and 15-56 are found patentable for the same
`
`reason.
`
`Although TSE (Orientation) A, TSE (Operation) B, Amazon, and Friesen raised a
`
`substantial new question of patentability as set forth in the order granting reexamination dated
`
`August 1, 2007, these references do not anticipate the above-mentioned claim limitations and do
`
`Page 7 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 6
`
`not render the claims obvious. TSE (Orientation) A and TSE (Operation) B clearly teach that the
`
`display of prices is automatically updated every three seconds so as to keep the "center price" in
`
`the middle ofthe screen. This teaching is directly counter to the static display of US. Patent No.
`
`6, 772,132, which uses the static display of prices so that the user does not accidentally place an
`
`order at the unintended price (see column 2 lines 56-63). The requester relies on the one
`
`statement in TSE (Operation) B on page 640, which states that in the scroll screen the price
`
`display locations do not change automatically, for the teaching of a "static" display of prices.
`
`This teaching does not meet the claim limitations, as it is only a teaching that the automatically
`
`centering of the "center price" does not occur when the user is in the scroll mode. If it did, the
`
`user would not be able to scroll to the desired price, because the scrolling would result in the
`
`"center price" not being in the center of the screen. Amazon and Friesen also do not teach such
`
`claim limitations nor render the claims obvious".
`
`• A Reexamination Certificate was issued by USPTO on March 31, 2009. The certificate
`
`states: "The patentability of claims 1-56 is confirmed'.
`
`Analysis of Asserted New Questions of Patentability
`
`Preliminary Notes:
`
`(1) Friesen et al ('325) is alternatively referred to in the request as "the '550 application"
`
`since it is a laid open publication of US utility application 09/289,550 (see request at page 17,
`
`third paragraph). For purposes of clarity· and consistency, it will be referred to hereafter as
`
`Friesen et al (' 325), since the ('325) document is what is cited in the information disclosure. The
`
`application 09/289,550 also does not have any of the paragraph numbers referenced in the
`
`request.
`
`Page 8 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 7
`
`(2) For each proposed new question, requester alternates between references to Friesen et
`
`al ('325) and Friesen et al ('999). Since Friesen et al ('999) is simply the patent which matured
`
`from the application of Friesen et al ('325), the two references are inter-related. Accordingly,
`
`both references will be addressed when the teachings of Friesen et al are raised as an issue.
`
`Issue #1: Requester asserts a substantial new question of patentability involving claims
`
`1-2, 8, 14, 20,22-23,25,27-28,30,32-33,37-38,40,42-43,47-48 and 53 in view of Friesen et
`
`~('325) or Friesen et al ('999).
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`
`record during the prosecution of the application that resulted in the patent for which
`
`reexamination is requested, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested".
`
`The reference to Friesen et al ('325) was cited in the record of reexamination 90/008,576.
`
`It was listed as one of the cited references of the proceeding on the reexamination certificate
`
`published March 31, 2009. Additionally, Friesen et al ('325) was commented on and considered
`
`by the Examiner in the "reasons for patentability" attached to the NIRC action of June 16, 2008.
`
`Accordingly, the re-appearance of Friesen et al ('325) in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior reexamination proceeding
`
`Page 9 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 8
`
`90/008,576 and is merely cumulative to the identical citation of this reference in the prior
`
`reexamination proceeding.
`
`The reference to Friesen et al ('999) is the United States Patent which matured from the
`
`laid open application published as Friesen et al ('325). The content and technological teachings
`
`of Friesen et al ('999) ~orrespond with the content and technological teachings of Friesen et al
`
`('325). Requester does not assert any distinction between these references, nor is any distinction
`
`found. Although Friesen et al ('999) was not previously cited, Friesen et al ('999) presents no
`
`new technological teachings in comparison to Friesen et al ('325). The technological teachings
`
`considered py the examiner for Friesen et al ('325) correspond to those teachings of Friesen et al
`
`('999), and thus the teachings are previously considered.
`
`Accordingly, Friesen et al ('325) and Friesen et al ('999) do not raise a substantial new
`
`question of patentability for any of the claims 1-2, 8, 14, 20, 22-23, 25, 27-28, 30, 32-33, 37-38,
`
`40, 42-43, 47-48 and 53 of US Patent 6,772,132.
`
`Issue #2: Requester asserts a substantial new question of patentability involving claim 1
`
`as being obvious 'in view of Friesen et al ('325) or Friesen et al ('999).
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`
`record during the prosecution of the application that resulted in the patent for which
`
`Page 10 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 9
`
`reexamination is requesjed, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested''.
`
`The reference to Friesen et al ('325) was cited in the record of reexamination 90/008,576.
`
`It was listed as one of the cited references of the proceeding on the reexamination certificate
`
`published March 31, 2009. Additionally, Friesen et al ('325) was commented on and considered
`
`by the Examiner in the "reasons for pateptability" attached to the NIRC action of June 16, 2008.
`
`Accordingly, the re-appearance of Friesen et al ('325) in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior· reexamination proceeding
`
`90/008,576 and is merely cumulative to the identical citation of this reference in the prior
`
`reexamination proceeding.
`
`The reference to Friesen et al ('999) is the United States Patent which matured from the
`
`laid open application published as Friesen et al ('325). The content and technological teachings
`
`of Friesen et al ('999) correspond with the content and technological teachings of Friesen et al
`
`('325rRequester does not assert any distinction between these references, nor is any distinction
`
`found. Although Friesen et al ('999) was not previously cited, Friesen et al ('999) presents no
`
`new technological teachings in comparison to Friesen et al ('325). The technological teachings
`
`considered by the examiner for Friesen et al ('325) correspond to those teachings of Friesen et al
`
`('999), and thus the teachings are previously considered.
`
`Accordingly, Friesen et al ('325) and Friesen et al ('999) do not raise a substantial new
`
`question of patentability for claim 1 ofUS Patent 6,772,132.
`
`Page 11 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 10
`
`Issue #3: Requester asserts a substantial new question of patentability involving claims 1,
`
`8, 14, 20, 22-23, 27-28, 30, 32-33, 37-38, 40, 42-43 and 47-48 as being obvious in view of
`
`Gutterman et al and Friesen et al ('325) or Friesen et al ('999).
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`
`record during the prosecution of the application that resulted in the patent for which
`
`reexamination is requested, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested'.
`
`The reference to Gutterman et al was cited during the prosecution of US Patent 6,772,132
`
`and is listed on the cover page of this patent. The reference to Gutterman et al was also cited a
`
`second time during prior reexamination proceeding 90/008,576 and is listed on the cover page of
`'
`the reexamination certificate resulting from this proceeding and published March 31, 2009. The
`
`introduction of Gutterman et al in this proceeding represents the third time that this exact same
`
`reference has been presented for consideration.
`
`The reference to Gutterman et al was considered by the Examiner in an information
`
`disclosure statement signed by the Examiner on January 9, 2002, and attached to the Notice of
`
`Allowance mailed July 31, 2002. The reasons for allowance attached to the action of July 31,
`
`2002 refers to "the prior art" (page 1, section 2) as being considered in the decision for
`
`patentability. Since Gutterman et al was part of the prior art in the record at the date of this
`
`Page 12 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 11
`
`decision, the record reflects that Gutterman et al was previously considered by the examiner.
`
`Gutterman et al was considered a second time by the Examiner in the prior reexamination
`
`90/008,576, as evidenced by the information disclosure statement signed February 28, 2008 at
`
`page 36 (paper of March 4, 2008).
`
`Accordingly, the third re-appearance Gutterman et al in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior prosecution and is merely
`
`cumulative to the citation of this reference in the prior prosecution history and the prior
`
`reexamination proceeding.
`
`The reference to Friesen et al ('325) was cited in the record of reexamination 90/008,576.
`
`It was listed as one of the cited references of the proceeding on the reexamination certificate
`
`published March 31, 2009. Additionally, Friesen et al ('325) was commented on and considered
`
`by the Examiner in the "reasons for patentability" attached to the NIRC action of June 16, 2008.
`
`Accordingly, the re-appearance of Friesen et al ('325) in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior reexamination proceeding
`
`90/008,576 and is merely cumulative to the identical citation of this reference in the prior
`
`reexamination proceeding.
`
`The reference to Friesen et al ('999) is the United States Patent which matured from the
`
`laid open application published as Friesen et al ('325). The content and technological teachings
`
`of Friesen et al ('999) correspond with the content and technological teachings of Friesen et al
`
`('325). Requester does not assert any distinction between these references, nor is any distinction
`
`found. Although Friesen et al ('999) was not previously cited, Friesen et al ('999) presents no
`
`new technological teachings in comparison to Friesen et al ('325). The technological teachings
`
`Page 13 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 12
`
`considered by the examiner for Friesen et al ('325) correspond to those teachings of Friesen et al
`
`('999), and thus the teachings are previously considered.
`
`Accordingly, Gutterman et al, Friesen et al ('325) and Friesen et al ('999) do not raise a
`
`substimtial new question of patentability for any of the claims 1, 8, 14, 20, 22-23, 27-28, 30, 32-
`
`33, 37-38, 40, 42-43 and 47-48 of US Patent 6,772,132.
`
`Issue #4: Requester asserts a substantial new question of patentability involving claims
`
`14, 40, 42, 43, 47 and 48 as being anticipated by Gutterman et al.
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`\
`record during the prosecution of the application that resulted in the patent for which
`
`reexamination is requested, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested'.
`
`The reference to Gutterman et al was cited during the prosecution of US Patent 6,772,132
`
`and is listed on the cover page of this patent. The reference to Gutterman et al was also cited a
`
`second time during prior reexamination proceeding 90/008,576 and is listed on the cover page of
`
`the reexamination certificate resulting from this proceeding and published March 31, 2009. The
`
`introduction of Gutterman et al in this proceeding represents the third time that this exact same
`
`reference has been presented for consideration.
`
`Page 14 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 13
`
`The reference to Gutterman et al was considered by the Examiner in an information
`
`disclosure statement signed by the Examiner on January 9, 2002, and attached to the Notice of
`
`Allowance mailed July 31, 2002. The reasons for allowance attached to the action of July 31,
`
`2002 refers to "the prior art" (page 1, section 2) as being considered in the decision for
`
`patentability. Since Gutterman et al was part of the prior art in the record at the date of this
`
`decision, the record reflects that Gutterman et al was previously considered by the examiner.
`
`Gutterman et al was considered a second time by the Examiner in the prior reexamination
`
`90/008,576, as evidenced by the information disclosure statement·signed February 28, 2008 at
`
`page 36 (paper of March 4; 2008).
`
`Accordingly, the third re-appearance Gutterman et al in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior prosecution and is merely
`
`cumulative to the citation of this reference in the prior prosecution history and the prior
`
`reexamination proceeding
`
`Accordingly, Gutterman et al does not raise a substantial new question of patentability for
`
`any ofthe claims 14, 40, 42, 43,47 and 48 ofUS Patent 6,772,132.
`
`, Issue #5: Requester asserts a substantial new question of patentability involving claims 1
`
`and 8 in view of LIFE CONNECT and Friesen et al ('325) or Friesen et al ('999).
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`
`Page 15 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 14
`
`record during the prosecution of the application that resulted in the patent for which
`
`reexamination is requested, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested'.
`
`LIFE CONNECT was previously considered by the Examiner in the prior reexamination
`
`90/008,576, as evidenced by the information disclosure statement signed February 28, 2008 at
`
`page 31 (paper of March 4, 2008). Accordingly, the re-appearance LIFE CONNECT in this
`
`proceeding provides no new technological teachings. Its content was considered during the prior
`
`reexamination proceeding and its submission in this proceeding is merely cumulative.
`
`The reference to Friesen et al ('325) was cited in the record of reexamination 90/008,576.
`
`It was listed as one of the cited references of the proceeding on the reexamination certificate
`
`published March 31, 2009. Additionally, Friesen et al (' 325) was commented on and considered
`
`by the Examiner in the "reasons for patentability" attached to the NIRC action of June 16, 2008.
`
`Accordingly, the re-appearance of Friesen et al ('325) in this proceeding provides no new
`
`technological teachings. Its content was considered during the prior reexamination proceeding
`
`90/008,576 and is merely cumulative to the identical citation of this reference in the prior
`
`reexamination proceeding.
`
`The reference to Friesen et al ('999) is the United States Patent which matured from the
`
`laid open application published as Friesen et al ('325). The content and technological teachings
`
`of Friesen et al ('999) correspond with the content and technological teachings of Friesen et al
`
`('325). Requester does not assert any distinction between these references, nor is any distinction
`
`found. Although Friesen et al ('999) was not previously cited, Friesen et al ('999) presents no
`
`new technological teachings in comparison to Friesen et al (' 325). The technological teachings
`
`Page 16 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art.Unit: 3992
`
`Page 15
`
`considered by the examiner for Friesen et al ('325) correspond to those teachings of Friesen et al
`
`('999), and thus the teachings are previously considered.
`
`Furthermore, MPEP 2242 states:
`
`"A prior art patent or printed publication raises a substantial question of patentability
`
`where there is a substantial likelihood that a reasonable examiner would consider the prior art
`
`patent or printed publication important in deciding whether or not the claim is patentable".
`
`Claim 1 recites:
`
`"displaying market depth of the commodity, through a dynamic di5play of a plurality of
`
`bids and a plurality of asks in the market for the commodity, including at least a portion of the
`
`bid and ask quantities of the commodity, the dynamic display being aligned with a static display
`
`of prices corresponding thereto"
`
`The claim chart presented in the request indicates that these features are taught by LIFE
`
`CONNECT at pages 7 and F-65. Page 7 of LIFE CONNECT at the last paragraph does generally
`
`reference "market depth" and "best buy and sell" information, but does not clearly indicate the
`
`presence bid/ask data or i~dicate an alignment bid/ask data with a static display of prices. Page
`
`F-65 does illustrate diagrams where buy and sell volume a correlated to specific price levels.
`
`While this does illustrate the commodity quantities associated with each price level, it does not
`
`display the plurality of bids and the plurality of asks.
`
`Claim 8 recites:
`
`"a second program code displaying market·depth of the commodity, through a dynamic
`
`display of a plurality of bids and a plurality of asks in the market for the commodity, including
`
`Page 17 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 16
`
`the bid and ask quantities of the commodity, the dynamic display being aligned with a static
`
`display of prices corresponding thereto"
`
`The claim chart presented in the. request indicates that these features are taught by LIFE
`
`CONNECT at pages 7 and F-65. Page 7 of LIFE CONNECT at the last paragraph does generally
`
`reference "n:J.arket depth" and "best buy and sell" information, but does not clearly indicate the
`
`presence bid/ask data or indicate an alignment bid/ask data with a static display of prices. Page
`
`F-65 does illustrate diagrams where buy and sell volume a correlated to specific price levels.
`
`While this does illustrate the commodity quantities associated with each price level, it does not
`
`display the plurality of bids and the plurality of asks.
`
`Accordingly, a reasonable examiner would not consider LIFE CONNECT important in
`
`evaluating the patentability of claim 1 or claim 8.
`
`Given these consideration, no substantial new question of patentability is raised with
`
`respect to claims 1 and 8 in view of LIFE CONNECT and Friesen et al ('325) or Friesen et ~1
`
`('999).
`
`Issue #6: Requester asserts a substantial new question of patentability involving claims 1
`
`and 8 in view of SWX Manual and Friesen et al ('325) or Friesen et al ('999).
`
`MPEP 2216 states:
`
`"It is not sufficient that a request for reexamination merely proposes one or more
`
`rejections of a patent claim or claims as a basis for reexamination. It must first be demonstrated
`
`that a patent or printed publication that is relied upon in a proposed rejection presents a new,
`
`non-cumulative technological teaching that was not previously considered and discussed on the
`
`record during the prosecution of the application that resulted in the patent for which
`
`Page 18 of 24
`
`
`
`Application/Control Number: 90/011 ,250
`Art Unit: 3992
`
`Page 17
`
`reexamination is requested, and during the prosecution of any other prior proceeding involving
`
`the patent for which reexamination is requested'.
`
`SWX Manual was previously considered by the Examiner in the prior reexamination
`
`90/008,576, as evidenced by the information disclosure statement signed September 26, 2008 at
`
`page 10 (paper of November 6, 2008). Also note that the examiner placed a notation on this page
`
`stating "All References Considered Except Where Lined Through". Since the SWX Manual
`
`citation (citation #98 on the · page) is not lined through, the record explicitly indicates
`
`consideration of this reference by the Examiner in the prior reexamination proceeding.
`
`Accordingly, the re-appearance SWX Manual in the present proceeding provides no new
`
`technological teachings. Its 'content was considered during the prior reexamination proceeding
`
`and its submission in this proceeding is merely cumulative.
`
`As an additional observation, the copy of FIG 56 from the SWX Manual does not
`
`correspond to the copy of FIG 56 illustrated by requester at page 82 of the request. FIG 56
`
`appears in the SWX Manual as follows:
`
`Page 19 of 24
`
`
`
`Application/Control Number: 90/011,250
`Art Unit: 3992
`
`Page 18
`
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