Paper No.
`Filed: July 5,2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TRADESTATION GROUP, INC.,
`
`TRADESTATION SECURITIES, INC., IBG LLC, and
`
`INTERACTIVE BROKERS LLC,
`
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`
`Case CBM201S-001611
`
`U.S. Patent 6,766,304 B2
`
`CORRECTED PATENT OWNER’S RESPONSE
`
`' Case CBM2016-00035 has beenjoined with this proceeding.
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`CBM2015-00161
`Patent No. 6,766,304
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`TABLE OF CONTENTS
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`I. PRELIMINARY STATEMENT ....................................................................... 1
`II. OVERVIEW OF THE CLAIMED INVENTION ........................................... 1
`A. Prior Art – Order Ticket and Figure 2-Style Screen ....................... 1
`B. Technical Problem ............................................................................... 5
`C. Technical Solution ............................................................................... 8
`III. CLAIM CONSTRUCTION ........................................................................... 13
`IV. THE CLAIMS OF THE ’304 PATENT ARE PATENT ELIGIBILE ....... 14
`A. TT’S Claims Are Not Directed to an “Abstract Idea”
`Under Alice Prong One .................................................................................. 15
`i.
`Petitioners Overgeneralize the Claim Elements .......................... 15
`ii. TT’s Claims Are Eligible under Part I of Alice Because They
`Improve the Functioning of the Computer ................................................ 17
`iii. The Claimed Invention is Eligible under Part I of Alice Because
`the Claimed Invention is Undoubtedly Not Abstract. ............................... 19
`iv. The Claimed Invention is Eligible under Part I of Alice Because
`GUIs Are Technology ................................................................................ 20
`v. The Claimed Invention is Eligible Part I of Alice Because It Is
`Are Not Directed to a Fundamental Economic or Longstanding
`Commercial Practice, A Business Method, Or a Generic GUI ................. 23
`B. The Claims Pass Part 2 oAlice Because They Recite an Inventive
`Concept ............................................................................................................ 25
`i. TT’s Claims Are Even More Technological Than Those In DDR
`And Would Exceed a Technological Arts Test ......................................... 30
`ii. The Claimed Invention Is New Technology ............................... 31
`iii. The Claimed Invention Passes the Machine or Transformation
`Test
`32
`C. The Fact That the Claimed Invention Went Against Conventional
`Wisdom at The Time of The Invention Is Further Evidence That the
`Claimed Invention Is Patent Eligible Under 35 U.S.C. 101. ...................... 34
`i. The Claimed Invention Went Against Conventional Wisdom .... 34
`ii. Overwhelming Secondary Considerations Prove That the
`Invention Is Not Obvious ........................................................................... 41
`iii. Problems with the Conventional GUI Tools Went Unrecognized
`42
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`iv. The Invention Provided Unexpected Results .............................. 43
`v. The Invention Was Received with Initial Skepticism, but Was
`Ultimately Demanded by Traders .............................................................. 46
`vi. The Invention Enjoyed Tremendous Commercial Success ......... 49
`vii. The Invention Was Widely Copied ............................................. 52
`viii. The Invention Received Widespread Praise In the Industry ....... 58
`ix. The Invention Also Received Widespread
`Industry Acquiescence ............................................................................... 60
`x. Others Failed to Make the Invention ........................................... 61
`xi. Other Evidence Proves Non-Obviousness .................................. 63
`D. Additional Features for the dependent claim support patent
`eligibility .......................................................................................................... 65
`V. COVERED BUSINESS METHOD JURISDICTION .................................. 65
`A. The ’304 Patent Does Not Claim “Data Processing” or “Other
`Operation” (e.g., a Business Method). .......................................................... 66
`B. The ’304 Patent Falls Under the Technological Exception ........... 68
`VI. DUE PROCESS ISSUES AND NONOBVIOUSNESS EVIDENCE .......... 70
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`I.
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`PRELIMINARY STATEMENT
`The claimed invention is directed to patent-eligible subject matter—the
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`structure, make-up, and functionality of an innovative graphical user interface
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`(“GUI”) tool. As discussed below, the claimed invention satisfies both steps of the
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`two-part test set forth in Alice. Furthermore, the claimed invention does not qualify
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`for covered business method review (CBMR) jurisdiction. As such, the Board
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`should confirm the patentability of the challenged claims.
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`II. OVERVIEW OF THE CLAIMED INVENTION
`A.
`Prior Art – Order Ticket and Figure 2-Style Screen
`In the electronic-trading industry, both prior to the invention of the ’304
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`patent and for a period thereafter, there was a widely accepted conventional
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`wisdom regarding the design of a GUI tool for order entry on electronic exchanges.
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`This conventional wisdom is best illustrated by two types of GUI tools—order
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`entry tickets and Figure 2-style screens. Ex.2169, ¶¶44-58. GUI tools such as these
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`represented the engrained conventional wisdom and state of the art regarding how
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`electronic trading GUIs for professional traders were best designed and
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`constructed. Id.
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`Order entry tickets were commonly used to enter and send orders to an
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`electronic exchange. Id. at ¶45. Though the structure and make-up of a ticket could
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`vary, the conventional construction provided a GUI, usually in the form of a
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`window, with areas for a trader to fill out order parameters (e.g., price, quantity, an
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`Patent No. 6,766,304
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`identification of the item being traded, buy or sell). Order tickets were known as
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`being accurate for order entry but slow. Conventional order tickets are still widely
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`used today.
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`Another type of GUI tool permitted users to enter and send orders by
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`directly interfacing with displayed prices (e.g., through the use of a mouse). Id. at
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`1[44-58. Figure 2 of the ’304 patent (reproduced with annotations below) illustrates
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`an example of one common GUI tool. Figure 2-style tools were ubiquitous by the
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`time of the invention. The overwhelming majority of these GUI tools were
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`constructed to provide designated locations for displaying the best bid price and
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`best ask price in the GUI. Id. at 1147.
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`
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`Always Displayed
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`Always Displayed
`Here
`Here
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`
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`I 7626
`7627
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`m§IW—-
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`
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`Best Bid Price is
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`Best Ask Price is
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`7627
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`489
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`The structure, make—up, and functionally of the GUI tool shown in Figure 2
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`is as follows. Id. at 1149. The Figure 2 screen includes a BidPrc column 203 with
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`locations (e. g., cells) to display bid prices and an AskPrc column 204 adjacent to
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`the BidPrc column with locations (e. g., cells) to display ask prices. Id. The best bid
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`price that is currently available in the market (the highest price at which there is an
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`order to buy for the item being traded at the electronic matching engine) is always
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`displayed at the top of column 203, and other prices at which other buy orders are
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`pending at the electronic exchange are displayed in descending price order in the
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`BidPrc column 203, each such price being displayed in a separate location (e.g.,
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`cell). Id. Similarly, the best ask price that is currently available in the market (the
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`lowest price at which there is an order to sell for the item being traded at the
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`electronic matching engine) is always displayed at the top of column 204, and
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`prices at which other sell orders are pending at the electronic exchange are
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`displayed in ascending price order in the AskPrc column 204, each such price
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`being displayed in a separate location (e.g., cell). Id. The inside market means the
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`best bid price and best ask price available in the market. Id. Typically, these GUI
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`tools provided the ability to select the number of rows to be displayed. Id. at ¶56.
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`For example, a trader desiring to only to see the inside market could limit the GUI
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`tool to display only the top row. Id.
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`The quantities associated with the buy orders at the electronic exchange are
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`displayed at locations (e.g., cells) in the BidQty column 202. Id. at ¶50. The
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`locations (e.g., cells) in the AskQty column 20 display quantities associated with
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`sell orders. Id. Each location (e.g., cell) in the BidQty column 202 and the AskQty
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`column 205 displays a number indicating the total quantity at the electronic
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`exchange at the price shown in the adjacent location (e.g., cell) of the
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`corresponding BidPrc column 203 and AskPrc column 204, respectively. Id.
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`All the displayed prices and quantities illustrated in Figure 2 update
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`dynamically as information is relayed from the electronic exchange. Id. For
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`example, when updates from the electronic exchange change the inside market, the
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`GUI tool causes the display of price values within the cells of the top row in
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`columns 203 and 204 to change. Id. at ¶51. The other displayed bid and ask prices,
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`as well as the associated quantities located in columns 202 and 205, similarly
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`change to reflect updates from the market. Id. Therefore, the displayed prices and
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`quantities constantly change in response to updates from the electronic exchange.
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`Id. However, the locations (or cells) designated for the inside market remains in the
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`same top row of the display of prices. Id. Thus, the Figure 2 GUI is constructed to
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`fix the location of the inside market for a commodity in a predetermined location
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`of the display (e.g., in the top cells of columns 203 and 204). Id.
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`In this type of dynamic screen, there is no price axis. Id. at ¶52. In other
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`words, this GUI tool only displays, in columns 203 and 204, those prices for which
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`orders are pending at the electronic exchange. Id. This GUI tool does not display
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`price levels that have no orders. Id. For example, in Figure 2 above, price level
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`7628 is omitted, because there is no order pending at the electronic exchange at
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`that price level. Id.
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`While some features varied from one dynamic GUI tool to another, there
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`was one constant: the tool displayed (or provided) the best bid price and the best
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`ask price at fixed, designated locations. Id. at ¶58. This made perfect sense and was
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`perceived by those skilled in the art at the time as a significant advantage because
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`it emphasized focus on the primary target for the traders: the inside market. Id. The
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`inside market is the most important information for a trader. Id. In addition, the
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`inside market was the focus because, prior to the invention, the most common
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`types of orders were orders made at the inside market (commonly referred to as
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`“market orders” or “market type orders”). Id. The same was true in the open outcry
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`trading pits, where the inside market was the focus because trades were only made
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`at the inside market (orders could only be represented at the inside market prices or
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`better). Id. Since the location of the inside market is always known, the trader may
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`easily spot the target, regardless of changes in the market. Id. At any given time,
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`the trader could look at the screen and immediately know the current state of the
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`market. Id. Those skilled in the art valued these conventional dynamic screens as
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`being the fastest and most accurate way to enter orders at the inside market. Id.
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`Technical Problem
`B.
`While the Figure 2-style screens were widely accepted and used, Mr.
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`Brumfield, the main inventor of the ’304 patent, recognized that the structure and
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`make-up of that pre-existing technology directly caused a problem so significant
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`for him that he used order tickets instead. See Ex.2169, ¶¶79-80. In particular, Mr.
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`Brumfield focused on trading at particular prices, not the inside market prices, and
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`traded tremendous volume. Id. The fixed location of the inside market cells caused
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`him to miss his intended price as a result of the price changing from under his
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`cursor before he sent his order. Id.
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`As shown in Exhibit 2212 and the screen capture below, in the conventional
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`dynamic GUI tool, the prices and quantities constantly change within the displayed
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`cells. Ex.2169, ¶79. The trader wishes to place an order to buy the contract at the
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`price of 111175. Id. However, as the trader moves the cursor to the location
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`corresponding to the best ask price of 111175 and attempts to select that price with
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`the mouse (Time 1), the price changes to 111180 just prior to the trader clicking
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`the mouse, such that when the mouse is clicked to set and send the order, it is sent
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`at the wrong price, 111180 (Time 2). Id. This example results in a loss of
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`$1562.50. Id. at ¶80.
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`Time 1
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`Time 2
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`The structure, make-up, and functioning of the conventional Figure 2-style
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`GUI (the technology) cause this inaccuracy problem recognized by Mr. Brumfield.
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`Id. That the problem may effect a business issue—the inaccuracy leads to an
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`incorrect order—does not change the technical nature of the problem. Id.
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`Technical Solution
`C.
`In 1998, attempting to solve this technological problem, Mr. Brumfield
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`conceived of a new GUI order entry tool. Ex.2169, ¶81. This GUI tool combined a
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`dynamic display of bid and ask indicators that move relative to a static price axis
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`with displaying an order entry region with locations corresponding to price levels
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`along the price axis that can be selected by a single action of a user input device
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`(e.g., clicked on) to both set a plurality of parameters (e.g., price and type of order)
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`and to send an electronic message representing a trade order with those parameters
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`to an electronic exchange. In September 1998, Mr. Brumfield sketched out the
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`structure and make-up of the new GUI tool (Ex.2213):
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`Mr. Brumfield retained a programmer from TT to build a prototype so that
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`he could test the GUI tool using his normal approaches in live markets. Ex.2169,
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`¶81. This testing revealed the incredible advantages of his invention. Id. First, the
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`invention addressed the speed/accuracy problem of missing a desired price caused
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`by Figure 2-style screens. Id. at ¶82. Second, it had the unexpected benefit of
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`providing a more intuitive visualization that offered a better feel for and quicker
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`reaction to the market. Id. The overall combination had a dramatic impact on Mr.
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`Brumfield’s trading—causing his profitability to skyrocket. Id.
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`The claims of the ’304 patent recite the structure, make-up, and functionality
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`of the GUI order entry tool, which can be connected to an electronic exchange such
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`that the tool receives updates from the exchange and can be used to send order
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`messages to the exchange. Specifically, the structure, make-up, and functionality
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`of the claims include, inter alia, the combination of a static price axis, bid and ask
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`indicators in bid and ask display regions respectively that are dynamically
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`displayed, such bid/ask display regions having locations corresponding to price
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`levels of the static price axis, and an order entry region comprising a plurality of
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`locations for receiving commands to send trade orders, each location
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`corresponding to a price level along the common static price axis. See Ex.1001,
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`12:35-13:3 (Claim 1).
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`Figures 3 and 4 of the ’304 patent show an embodiment of the claimed
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`invention at two times (T1 and T2), just before and after receipt of an update from
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`the electronic exchange reflecting a change in the inside market.
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`As seen in Figure 3, the GUI includes a static price axis with a range of price
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`levels in column 1005. The GUI also provides dynamic displays of indicators in
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`regions with locations that correspond to the levels of the price axis. The GUI
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`displays these indicators based on data received from the electronic exchange. The
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`indicators displayed in column 1003 represent information regarding bid or buy
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`orders in the market (referred to herein as “bid indicators”) and the indicators
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`displayed in column 1004 represent information regarding ask or sell orders in the
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`market (referred to herein as “ask indicators”). The best bid indicator (e.g., 18)
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`represents quantity available in the market at the current best bid price (e.g., 89).
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`The best ask indicator (e.g., 20) represents quantity available in the market at the
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`current best ask price (e.g., 90). The ’304 claims refer to the best bid indicator as
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`the “first indicator” and the best ask indicator as the “second indicator.” The price
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`levels representing the current inside market are labeled with reference number
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`1020.
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`The GUI also provides locations corresponding to different price levels of
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`the price axis that can be selected by a single action of a user input device to both
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`set a plurality of order parameters (e.g., the price and type of the order) and to send
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`an order message to an exchange. For example, the cells of the dynamic bid
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`column 1003 are configured to receive single action commands that both set the
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`price and that the order is a buy order and send an order message with these
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`parameters to the exchange. Likewise, the cells of the dynamic ask column 1004
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`are configured to receive single action commands that both set the price and that
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`the order is a sell order and send an order message with these parameters to the
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`exchange.
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`Figure 4 displays information for the same tradeable object at a later time
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`when, in response to market updates, the GUI caused the inside market indicators
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`to move up relative to the price axis such that the indicators now reflect a best bid
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`price of 92 and a best ask price of 93. The price levels of the price column
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`remained fixed between T1 and T2. Unlike conventional prior art screens of the
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`sort shown in Figure 2 of the ’304 patent, if the user clicked to send an order at the
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`very moment the market changed with the illustrated embodiment of the invention,
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`an order message would have been sent to the electronic exchange with the user’s
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`intended price parameter because the order entry location remained associated with
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`the same price level.
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`The independent claims of the ’304 patent are directed to a combination of
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`structure, make-up, and functionality. Ex.2168, ¶ 39. For example, claim 1 of the
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`’304 patent claims a static price axis, dynamically displaying bid and ask indicators
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`in bid and ask display regions respectively, such bid/ask display regions having
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`locations corresponding to price levels of the static price axis, and order entry
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`region comprising a plurality of locations for receiving commands to send trade
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`orders. It was this construction of the GUI that was the reason for allowance during
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`the original examination and later reexaminations. Ex.1012 at 5; Ex.2021 at 2-3.
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`III. CLAIM CONSTRUCTION
`The term “trade order” in the claim was construed in district court to mean a
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`“single, electronic message in executable form that includes at least all required
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`parameters of a desired trade.” Ex 2020, 18-19. In light of the specification,
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`prosecution history, and litigation history, this is also the BRI of this claim term.
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`IV. THE CLAIMS OF THE ’304 PATENT ARE PATENT ELIGIBILE
`The patent claims eligible subject matter. TT’s claims are not directed to an
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`“abstract idea” under Alice Prong One. Instead, the claims are directed to the
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`structure, make-up, and functionality of a specialized and improved GUI tool with
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`features that are tangible and can be touched, viewed, and interacted with like a
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`physical device. Because the claim elements set forth a specific structure and
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`make-up, the claimed GUI is even more clearly patent eligible than the claimed
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`invention in Enfish, where the Federal Circuit upheld the patentability of claims
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`that were directed to improvements in technology that were not tangible, i.e., data
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`processing. Enfish, LLC v. Microsoft Corp., No. 2015-1244, 2016 WL 2756255, at
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`*8 (Fed. Cir. May 12, 2016).
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`Like Enfish, TT’s claims are directed to a specific implementation of a
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`technical solution to a problem that originated in existing technology at the time of
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`the invention. Specifically, TT’s invention overcomes technological problems with
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`prior art GUIs relating to speed, accuracy and usability. TT’s claims are not just
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`rooted in technology; they define new technology that overcomes problems with
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`the functionality of prior art GUIs.
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`The complete lack of preemption by TT’s claims confirms the absence of
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`abstractness—a myriad of not claimed GUIs for electronic trading exist. Ex.2169,
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`¶61-62.
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`TT’s claims are also independently eligible under Alice Prong Two because
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`they undoubtedly contain an inventive concept transforming the claimed invention
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`into an inventive tool rooted in technology. When viewing the claim elements
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`individually and as an ordered combination, this Prong is independently met.
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`A.
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`TT’S Claims Are Not Directed to an “Abstract Idea” Under Alice
`Prong One
`Petitioners Overgeneralize the Claim Elements
`i.
`Petitioners allege that the claims are directed to the abstract concept of
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`“placing an order based on observed (plotted) market information, as well as
`
`updating market information.” Pet. 40-41. Petitioners, however, omit the core
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`features of the claims and instead depict an over-generalized and “untethered”
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`characterization that cannot be tied to the claims. The Federal Circuit recently
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`rejected this practice and cautioned that “describing the claims at such a high level
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`of abstraction and untethered from the language of the claims all but ensures that
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`the exceptions to § 101 swallow the rule.” See Enfish, 2016 WL 2756255, at *6
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`(rejecting practice of “describing the claims at such a high level of abstraction and
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`untethered from the claim language…”).
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`Petitioners conveniently omitted core features that recite the specific
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`structure and make-up of the GUI tool, i.e., the aspects of the claims directed to
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`patent eligible subject matter, and instead formulated a description that met their
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`needs. The claim, which speaks directly to the structure and make-up of the GUI
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`tool, requires much more than merely “placing an order” or “updating market
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`information,” and is entirely absent from Petitioners’ proposed characterization. As
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`can be seen in the figure below, Petitioners’ omitted nearly every claimed concept
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`that speaks to the structure and make-up of the GUI tool, and instead chose to
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`focus on words/features that are not even recited in the claims, such as “placing an
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`order,” “observed,” “plotted,” and “updating market information.”
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`Thus, Petitioners’ analysis fails because it ignores claimed invention’s core
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`features to assert the claims are directed to an abstract idea. See Enfish, 2016 WL
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`2756255, at *6 (rejecting such practice); Ex.2022 at 6 (holding TT’s patents are not
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`directed to abstract idea of displaying and updating market information and placing
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`an order because this “ignores much of the detail of the representative claims”).
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`The Board found no error in the CQG court’s reasoning this patent, and should
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`follow that court’s guidance here for the additional reasons below.
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`Therefore, the claimed invention is not directed to “placing an order based
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`on observed (plotted) market information, as well as updating market information”
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`or any abstract idea.
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`ii.
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`TT’s Claims Are Eligible under Part I of Alice
`Because They Improve the Functioning of the
`Computer
`A GUI is an integral component of a computer, just like a processor,
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`memory, and network interface. Ex.2168, ¶¶25-29; Ex.2174, ¶¶12-14; see also
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`Mortg. Grader, Inc. v. First Choice Loan Servs., Inc., 811 F.3d 1314, 1324 (Fed.
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`Cir. 2016); Intellectual Ventures I LLC v. Capital One Bank (USA), 792 F.3d 1363,
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`1370 (Fed. Cir. 2015).
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`First, at the most basic level, the claimed GUI improves the computer
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`because it allows the computer to be used in new and inventive ways. Ex.2168,
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`¶¶25-29; Ex.2174, ¶¶12-15. A specific improvement to the claimed GUI
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`construction, as claimed, improves the functioning of the computer. Ex.2168, ¶¶25-
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`29; Ex.2174, ¶¶6-27; Enfish, 2016 WL 2756255, at *4 (“Software can make non-
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`abstract improvements to computer technology just as hardware improvements
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`can, and sometimes the improvements can be accomplished through either route.”).
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`Using GUIs on the iPhone, the computer can function as a phone, compass,
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`calculator, etc. Ex.2174, ¶12. Without these GUIs, the iPhone and most personal
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`computers are useless. Id. Claims that set forth a new GUI construction that causes
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`the computer to function differently improve the computer.
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`Second, the claimed invention improves the functioning of the computer
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`because it solves problems that were caused by the computer. Ex.2168, ¶¶34-39.
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`That is, the structure, make-up and functionality of the pre-existing Figure 2 GUI
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`tool (as explained above) that created the technological problem. The problem
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`would not have existed absent the structure, make-up, and functionality of the GUI
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`in Figure 2. The claimed invention solves that problem by providing a new
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`construction (e.g., new structure, make-up, and functionality) that resolves the
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`technological problem. Accordingly, the claimed invention improves the
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`functioning of the computer because it solves problems with the previous structure,
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`make-up, and functionality of the GUI tool—an integral component of the
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`computer.
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`Finally, the claimed invention improves the functioning of the computer
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`because it sets forth a construction of a GUI tool that improves the speed, accuracy
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`and visualization of a GUI. These technical problems require the computer to
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`function differently than before in order to achieve these results. Ex.2168, ¶¶34-39;
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`Ex.2174, ¶¶6-27. These are appreciable improvements to a user. Id. These classic
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`engineering problems are indisputably technical. Ex.2174, ¶¶12-14. They require
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`the computer to function differently to achieve these improved results. Ex.2168,
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`¶48. Petitioners’ expert, Roman, testified as to the importance of these features to a
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`user. Ex.2166, 181:7-182:3. As such, solving these technical problems clearly
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`improves the computer’s functioning. Id.
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`iii.
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` The Claimed Invention is Eligible under Part I of
`Alice Because the Claimed Invention is Undoubtedly
`Not Abstract.
`“Some improvements in computer-related technology when appropriately
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`claimed are undoubtedly not abstract, such as a chip architecture, an LED display,
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`and the like.” See Enfish, 2016 WL 2756255, at *4. The structure, make-up, and
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`functionality of a GUI is as much a physical and integral part of a computer as a
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`processor or memory, and improvements to GUIs are just as eligible for patent
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`protection as any other computer-related technology. See, e.g., Mortg. Grader, 811
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`F.3d at 1324; Capital One, 792 F.3d at 1370.
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`In the Industrial Age, interfaces used physical or other tangible components
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`(e.g., knobs, buttons, levers, dials, gauges, etc.) to control machines. See Bilski v.
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`CBM2015-00161
`Patent No. 6,766,304
`Kappos, 130 S.Ct. 3218, 3227 (2010). A patent in the Industrial Age would have
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`claimed the structure, make-up, and functionality of the physical device (e.g.,
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`describing a novel/nonobvious wooden lever and dial system). Few would argue
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`that these types of physical, tangible interfaces are abstract ideas. Id.
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`Interfaces that previously used physical knobs and levers are now
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`implemented via GUI components, such as indicators and icons. Ex.2169, ¶21; see
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`Ex.2174, ¶12. These GUI components are analogous to interface components of
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`the Industrial Age, and GUIs built with them are likewise undoubtedly not abstract.
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`See Bilski, 130 S.Ct. at 3227. Similarly, TT’s claims recite the construction of a
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`novel/nonobvious GUI. TT’s claims are analogous to a physical device and are,
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`therefore, not abstract. Ex.2169, ¶¶21-22, 158-162; Ex.2174, ¶16.
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`iv.
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`The Claimed Invention is Eligible under Part I of
`Alice Because GUIs Are Technology
`GUIs are technology. Accordingly, the claimed invention, which provides
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`improved structure, make-up, and functionality of a GUI, is deeply rooted in
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`technology. Enfish, 2016 WL 2756255, at *8 (recognizing that advancement in
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`computer technology consists of improvements to software). In particular, GUIs
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`advance human-computer interaction (“HCI”), which has been touted as an
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`important and expanding technological field. Ex.2090, 2. As an example, NASA’s
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`Ames Research Center implemented an entire HCI group that is responsible for the
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`improving software the functionality of interface tools. Ex.2004; Ex.2005. Also,
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`Patent No. 6,766,304
`many colleges and universities offer courses and programs centered on interface
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`design to train engineers and programmers. Ex.2174 ¶12; Exs.2050-2058.
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`Experts also agree that GUIs are technology. Dr. Olsen states that “graphical
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`user interfaces are a technology with specific technical problems,” Ex.2174, ¶7,
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`and Mr. Bear states that “graphical user interfaces are inherently technology,”
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`Ex.2168, ¶3. Furthermore, Petitioners’ expert, Dr. Mellor, agreed that “the
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`underlying technology is the graphical user interface.” See, e.g., Ex.2294, 45.
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`Likewise, an expert for one of Petitioners’ joint defense partners, Van Dusen,
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`agreed that the “technology described in the patents is directed to a specific type of
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`graphical user interface for order entry.” Ex.2169, ¶172; Ex.2292, 110-11. This
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`includes Roman, who agrees that the claimed invention solves the problem of a
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`user missing their intended price. Ex.2166, 177:6-182:3.
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`Experts also agree that the claimed invention improves the GUI tool.
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`Ex.2168, ¶38; Ex.2174, ¶¶15, 16, 27-32. Furthermore, Roman admitted that the
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`claimed invention “trades one set of problems for [another].” Ex.2166, 178:14-
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`182:3. The courts have also acknowledged the improvements. E.g., eSpeed, 595
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`F.3d at 1347; Trading Techs. Int’l, Inc. v. Open E Cry, LLC, 728 F.3d 1309, 1312-
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`14 (Fed. Cir. 2013) (affirming that the ’304 patent “concern[s] a graphical user
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`interface” that is more intuitive and efficient than prior GUIs). Thus, there is no
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`real dispute that the claimed invention is directed to technology that improves the
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`pre-existing technology (e.g., the pre-existing GUI tools). Therefore,
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`improvements to the structure, make-up, and functionality of the GUI are
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`improvements to technology. Thus, the claims are clearly directed to technology,
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`not aesthetics.
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`Petitioners’ assertion that the claimed GUI is only about aesthetics is flat-out
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`wrong. Multiple experts agree that GUI design is a technological field and that the
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`claims are directed to a technological improvement in that field. Ex.2168, ¶38;
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`Ex.2174, ¶12. The reason the claimed construction of a GUI is viewed as better
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`from the user’s perspective lies in the science of human-computer interactions.
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`Ex.2168, ¶42; Ex.2174, ¶¶12, 15, 16, 23, 28-32. The experts confirm that, because
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`the user’s mental activities are not claimed, the claimed GUI construction is not
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`directed to a user’s decision-making process on when to place a trade or
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`automating the user’s decision-making process. Ex.2168, ¶34; Ex.2174, ¶¶27, 31.
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`Petitioners’ POSA definition supports the position that GUIs are technology.
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`The Petitioners’ POSA definition requires