`Filed: September 3, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`
`Case CBM2014-00136
`Patent 6,766,304
`
`Patent Owner’s Preliminary Response
`
`1
`
`TS 1006
`
`
`
`I.
`
`
`II.
`
`
`IV.
`
`B.
`
`TABLE OF CONTENTS
`PRELIMINARY STATEMENT ............................................................................. 1
`The Patented Technology .............................................................................. 4
`A.
`
`1.
`Technical Problems with the Prior Art ............................................. 5
`
`The Inventors Created New Technology That Provides Improved
`2.
`Accuracy While Maintaining Speed ................................................. 10
`The Claims Recite the Technical Elements of the Inventive Tool
` .............................................................................................................. 17
`The Prosecution History Confirms that the Patent’s Novelty is
`GUI Technology, Not Conducting a Trade ................................... 26
`TRIAL SHOULD NOT BE INSTITUTED BECAUSE THE INVENTIVE
`ASPECT OF THE CLAIMS DO NOT INVOLVE A METHOD OF
`DOING BUSINESS ................................................................................................ 27
`A.
`Patents to Novel GUI Tools, Even if Used in the Field of Trading, are
`Not within the Scope of AIA § 18 .............................................................. 28
`The Congressional Record Confirms that Patents to Novel GUIs, Even
`if Used for Trading, are Not within the Scope of AIA § 18 .................... 33
`
`TO SHOW THE CLAIMS ARE NOT FOR A “TECHNOLOGICAL
`INVENTION” ......................................................................................................... 40
` THE CLAIMS ARE FOR A TECHNOLOGICAL INVENTION, SO THE
`STATUTE PROHIBITS CBM REVIEW ............................................................ 42
`The Patent Is a Technological Invention in Every Way: It Solves a
`A.
`
`Technical Problem with a Technical Solution and Recites Novel and
`Nonobvious Technical Features .................................................................. 43
`1.
`Technical Problem: Prior Systems Required Significant Sacrificing
`
`of Accuracy for Speed and Vice Versa ............................................ 43
`The Claimed Invention Provides a Technical Solution to the
`Technical Problems: A New GUI Tool that Increases Accuracy
`While Maintaining Speed and Improves Visualization ................. 46
`
` THE PETITION’S CONCLUSORY STATEMENTS ARE INSUFFICIENT III.
`
`
`
`3.
`
`
`
`4.
`
`
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`2.
`
`
`
`2
`
`
`
`V.
`
`
`
`VI.
`
`
`
`VII.
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`3.
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`
`
`2.
`
`
`
`The Claimed Subject Matter that Solves the Above Technical
`Problems Using a Technical Solution Recites a Technical Feature
`that Is Novel and Nonobvious ........................................................ 52
`THE PETITION IS UNINSTITUTABLE BECAUSE IT LACKS
`MATERIAL FACTS NEEDED TO CONSTRUE THE CLAIMS ................ 54
`PETITIONERS’ PETITION FAILS TO SATISFY THE THRESHOLD
`REQUIREMENTS FOR INSTITUTION OF ITS PROPOSED PRIOR ART
`GROUNDS ............................................................................................................... 57
`A.
`Petitioners’ Petition Fails to Articulate Where the “Single Action”
`Elements of the Independent Claims Are Found in the Cited References
` ......................................................................................................................... 58
`1.
`Petitioners’ Petition Fails to Articulate Where the “Single Action”
`
`Elements of the Independent Claims Are Found in the Cited
`References of the TSE Combinations ............................................. 59
`Petitioners’ Petition Fails to Articulate Where the “Single Action”
`Elements of the Independent Claims Are Found in the Cited
`References of the Silverman/Gutterman Combinations .............. 62
`Petitioners’ 35 U.S.C. § 101 Challenge is Uninstitutable .......................... 64
`B.
` PETITIONERS CANNOT SHOW THEY ARE “MORE LIKELY THAN
`NOT” TO PREVAIL ON THEIR OBVIOUSNESS GROUNDS 2-6,
`WHEN THE SAME ARGUMENTS HAVE BEEN REJECTED
`REPEATEDLY BY THE OFFICE AND THE COURTS .............................. 65
`
`
`
`
` CONCLUSION ........................................................................................................ 67 VIII.
`
`3
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`
`
`
`
`TABLE OF AUTHORITIES
`
` Page(s)
`
`Cases
`KSR Int’l Co. v. Teleflex, Inc.,
`550 U.S. 398 (2007) ........................................................................................................ 57
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010)................................................................... 18, 51, 60, 64
`
`Trading Techs. Int’l, Inc. v. Open E Cry, LLC,
`728 F.3d 1309 (Fed. Cir. 2013).........................................................................................4
`
`Statutes
`35 U.S.C. § 101...................................................................................................................... 64
`
`35 U.S.C. § 103(a) ................................................................................................................. 57
`
`35 U.S.C. § 322................................................................................................................. 54-58
`
`35 U.S.C. § 324(a) ................................................................................................................. 56
`
`35 U.S.C. § 325(d) ................................................................................................................. 64
`
`AIA § 18 ...................................................................................................................... 1, 28, 33
`
`Rules
`37 C.F.R. § 42.22(a)(2) ......................................................................................................... 57
`
`37 C.F.R. § 42.301 ................................................................................................................ 42
`
`37 C.F.R. § 42.304(b)(4) ........................................................................................... 54, 57, 58
`
`Other Authorities
`77 Fed. Reg. 48620 (Aug. 14, 2012) .................................................................................. 57
`
`Agilysys, Inc. v. Ameranth, Inc.,
` CBM2014-00015, Paper 20 (Mar. 26, 2014) ............................................... 3, 32
`
`4
`
`
`
`Experian Mktg Solutions, Inc. v. Rpost Commc’ns Ltd.,
`CBM2014-00064, Paper 13 (July 31, 2014) ................................................................. 41
`
`
`
`5
`
`
`
`
`I.
`
`PRELIMINARY STATEMENT
`The Patent Owner, Trading Technologies International, Inc. (“TT”), has been
`
`in business since 1994 and currently employs around 400 people. Ex. 2007, Litigation
`
`Tutorial, p. 2. Headquartered in Chicago with offices around the world, TT develops
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`and sells electronic trading software. Id. TT’s products include an innovative order
`
`entry tool embodied in a graphical user interface (“GUI”) called MD Trader® that
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`permits users to interact with and send orders to electronic exchanges around the
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`world. Id., p 8. MD Trader is the commercial embodiment of the inventions claimed
`
`in U.S. Patent No. 6,772,132 (“the ’132 patent”). Id., p 35-61. MD Trader is sold to
`
`and used by thousands of customers around the world, including almost every major
`
`international bank. Id., slide 2.
`
`The petition should be denied because it provides only unsupported,
`
`conclusory statements insufficient to meet the Petitioners’ burden of showing the
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`claims are directed to a covered business method (“CBM”). First, the petition fails to
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`address the claims as a whole or explain why the claimed combination of features—
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`directed to a tool with particular structural and functional features embodied in a GUI
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`and not a business method—should be treated as a CBM patent. Second, even
`
`assuming that the claims involve a business method of the sort intended to be
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`captured by AIA § 18, the petition fails to show why the claims do not meet the
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`technological exception in Section 18 (“term [covered business method] does not
`
`include patents for technological inventions”). Petitioners also do not address the
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`6
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`
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`combination of technical structural and functional features that the Patent Office
`
`found made the claims novel and nonobvious.
`
`An analysis of the ‘304 patent claims shows that the patent is not a CBM. The
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`petition presents what TT believes to be a case of first impression (along with Case
`
`Nos. CBM2014-00131, CBM2014-00133, CBM2014-00135, and CBM2014-00137
`
`filed by the same Petitioners). The ’304 patent claims a novel GUI tool, not a method
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`of doing business. The ’304 patent claims specific features of a tool (embodied in a
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`GUI) that happens to be used in the financial industry. The inventive aspects of this
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`tool have nothing to do with a business method or practice. The claims do not
`
`merely cover “displaying market information” and “facilitating trading” or sending an
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`order to an electronic exchange. Rather, the claims require specific structural and
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`functional features of a tool embodied in a GUI. There are countless embodiments
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`of graphical order entry tools that are not covered by the claims of the ’304 patent.
`
`TT is not aware of any other CBM petition directed to such a patent. To TT’s
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`knowledge, other petitions have been directed to patents where at least arguably some
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`inventive aspect of the claims is directed to a business method or practice. TT
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`submits that claims where all inventive aspects reside in claimed technical features of a
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`tool, such as the graphical order entry tool of the ’304 patent, or a money sorting
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`machine or a stapler, fail to qualify as a CBM as a threshold matter and should not
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`even need to be analyzed under the technological exception (which they would
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`necessarily meet). Indeed, as shown below, the Congressional Record gives claims of
`
`7
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`
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`the sort at issue here, where the inventive aspect lies in a GUI tool used for trading, as
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`a specific example of claims not subject to Section 18. Ex. 2009, S5428. A different
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`result would be illogical given the statutory requirement for a “covered business
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`method,” contradict Congress’s purposes for enacting the statute, and subject owners
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`of purely technological patents to the unnecessary time and expense of responding to
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`improper CBM petitions.
`
`The ’304 patent also meets the technological exception and, therefore is not a
`
`CBM for that reason as well. At the time of the invention, the main inventor (Mr.
`
`Brumfield) recognized that trading screen technologies suffered from a significant,
`
`technical problem—conventional trading screens required a significant sacrifice in
`
`accuracy to achieve speed and vice versa. The ’304 patent claims a technical solution
`
`to this problem: a novel and non-obvious GUI tool that not only improved accuracy
`
`while maintaining speed, but also presented an interface that better visualized market
`
`changes making the tool more precise and efficient to use. The claimed novel and
`
`non-obvious technical features (explained below) address and provide a solution to
`
`these technical problems. The ‘304 patent does not involve claims directed to a
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`business practice (or a method of data processing) that merely recite a conventional
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`GUI element, such as generically displaying data. See e.g., CBM2014-00015, Paper 20.
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`Rather, the claims are directed to specific technical structural and functional features
`
`of a GUI tool that applies technology to overcome technical problems in the art.
`
`8
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`
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`Congress never intended technical inventions like those claimed in the ’304 patent to
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`be within the purview of CBM patent review. Ex. 2009, S5428.
`
`The assertion in the petition that the claims are anticipated and obvious also
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`fail to address the technical features of the claims and simply rehash old arguments
`
`based on references that have been considered—and overcome—many times before
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`both by the Patent Office during original examination and reexamination and the
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`related examination and reexaminations of the its parent patent U.S. Patent No.
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`6,772,132 (the “’132 patent”). Petitioners’ arguments provide only an illusion of
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`propriety, glossing over the detailed, technical features of the claims and ignoring
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`many key facts. Notably, the petition fails to disclose pertinent contrary information
`
`related to this past litigation and prosecution history.
`
`
`The Patented Technology
`A.
`The general field of art of the ‘304 patent is order entry tools embodied in a
`
`GUI. See ‘304 patent, 1:18-23 (“Specifically, the invention provides a trader with a
`
`versatile and efficient tool for executing trades. It facilitates the display of and the
`
`rapid placement of trade orders …”); Trading Techs. Int’l, Inc. v. Open E Cry, LLC,
`
`728 F.3d 1309, 1312-13 (Fed. Cir. 2013) (Federal Circuit describing subject matter of
`
`patent (in an appeal involving a related patent stemming from the parent ’132 patent
`
`with essentially the same specification) as “a graphical user interface that can display
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`essential data from a commodities market and allow a user to enter electronic trade
`
`orders on an exchange. Drawings [Figures 3 and 4] exemplify several key aspects of
`
`9
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`
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`the disclosed displays.”). These screens are highly specialized tools used for mission
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`critical applications. Many companies have invested, and continue to invest,
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`significant amounts of research and development on designing improved graphical
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`order entry tools. Ex. 2010, ¶¶ 35-38.
`
`As set forth below, the ’304 patent claims are directed to technical features of
`
`such a tool that are novel and non-obvious. The substance of what is inventive about
`
`all of the claims—including the method, system, and computer-readable medium
`
`claims—are the features of a GUI tool, and not practicing a method of doing business
`
`or data processing. The claimed tool can be used to implement trading strategies (e.g.,
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`buy low/sell high), but the claims are not directed to any such strategy. The method
`
`claims merely require that the claimed order entry tool, with the required structural
`
`and functional features, be used. In other words, the claims are about the claimed
`
`tool, not merely about the act of placing an order.
`
`
`Technical Problems with the Prior Art
`1.
`Prior to the invention of the ’304 patent, there was a well-accepted
`
`conventional wisdom regarding the design of a trading interface for order entry. Ex.
`
`2010, Second Corrected Expert Report of Christopher Thomas, ¶ 19. For example, it
`
`was conventional to provide the ability to enter orders using order entry tickets. Id.
`
`While there were, and continue to be, a variety of designs for such order tickets, such
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`screens typically provided a user the ability to fill out a ticket (with information like
`
`type of order, price, quantity, etc.) and then click on a send button (and/or a
`
`10
`
`
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`confirmation button) provided on the ticket to send an order to an exchange. Id. This
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`approach was widely known as being very accurate for order entry, but also as being
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`slow. Id.
`
`Another typical interface for permitting order entry is shown in Figure 2 of the
`
`’304 patent (shown below with annotations). Figure 2 depicts a conventional GUI
`
`tool used in the trading field that displayed the current “best prices” for a market on
`
`the top line of the GUI.
`
`
`
`
`
`Figure 2 of the ’304 patent
`Figure 2 represents a screenshot at a particular moment in time. Ex. 2010, ¶ 22.
`
`In these types of tools, the best bid price that is currently available in the market is
`
`always displayed at the top of column 203, and other bids that are also currently
`
`available in the market are displayed, progressively descending the BidPrc column 203.
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`Id. Similarly, the best ask price that is currently available in the market is always
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`11
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`
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`displayed at the top of column 204, and other asks that are currently available in the
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`market are displayed, progressively descending the AskPrc column 204. Id.
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`In these types of tools, each and every time the inside market (the best bid and
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`ask prices) changes, the price values displayed within the cells of the top row in
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`columns 203 and 204 change. Id., ¶ 23. The other displayed bid and ask prices
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`similarly change based on updates received from the market. Id. Therefore, the
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`displayed prices are constantly changing in response to changes in the market. Id.
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`However, the location (or cells) designated for the inside market remains in the same
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`top row of the display. Id. In other words, these types of tools maintained the display
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`of the inside market at the same location (i.e., fixed the inside market in a specified
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`location). Id. Figure 2 provides an example of one particular design of such a prior art
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`style screen. Various other designs of such style screens (where the inside market is
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`displayed in a fixed location) existed and continue to be developed and commonly
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`used today. Id., ¶¶ 24-28.
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`Some of these types of tools permitted “single action” order entry that
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`consisted of a trader presetting a default quantity and then clicking on a cell in the
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`screen (i.e., pressing a button on the tool) to cause a trade order message to be sent to
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`the exchange at the preset quantity and at the price value associated with that cell.
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`Id., ¶ 20.
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`Those of ordinary skill in the art at the time of the invention viewed these types
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`of trading tools as satisfying well-understood design criteria and as providing
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`12
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`
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`numerous advantages. Id., ¶¶ 24-28. For example, fixing the display of the inside
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`market at a designated location on the tool allowed a user to easily locate and focus on
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`the most important information—the inside market. Id., ¶ 25. At any given time, a
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`trader could look at the tool and immediately know the current state of the market. Id.
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`These tools also allowed the trader to rapidly and accurately enter market type orders
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`(orders made at the inside market prices) by clicking on the location for the best bid
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`or best ask prices. Id.
`
`Ex. 2011, Trial Testimony of Mr. Brumfield, pp. 676-678. He encountered a
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`problem with this type of tool. Id., pp. 682-706; Ex. 2010, ¶ 31. Mr. Brumfield was
`
`focused on entering orders at particular price levels, as opposed to market type orders.
`
`Ex. 2011, pp. 682-706. If Mr. Brumfield wanted to use fast single action order entry
`
`on these types of tools and was trying to enter an order at a particular price level, he
`
`had to sacrifice accuracy for speed. Id. In particular, there was a risk that he would
`
`miss his intended price as a result of prices changing from under his cursor right at
`
`the time he clicked on a cell. Id. The following example slide (which was used in court
`
`in litigation involving the patent) illustrates the problem:
`
`13
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`
`
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`Ex. 2007, p. 30. In this example, the “ask price” displayed in the top field of the GUI
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`changes from 111175 to 111180 in the time between the user deciding to place the
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`order at the displayed price (time 1) and the user executing the click (time 2). The
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`resulting trade is inaccurate because it executes at a different price (111180) from the
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`displayed price selected by the user (111175). Ex. 2010, ¶ 30. The ’132 patent
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`describes this problem at 2:60-67.
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`A video demonstrating this loss of accuracy in favor of speed in prior art
`
`trading screen tools of the sort shown in Figure 2 that was recognized by Mr.
`
`14
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`
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`Brumfield is attached as Exhibit 2012.1 This video demonstrating the problem was
`
`previously shown to the court in a litigation involving the ’304 patent.
`
`
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`2.
`
`The Inventors Created New Technology That Provides
`Improved Accuracy While Maintaining Speed
`In an attempt to address the problem described above, Mr. Brumfield
`
`conceived the design of a new GUI tool. Ex. 2011, pp. 690-693. One of Mr.
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`Brumfield’s early diagrams of the new GUI tool from September 1998 is shown
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`below:
`
`1 The extensive body of prior art considered in the original examination and then in
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`reexamination (and in litigation) includes some screens that function differently than
`
`the Figure 2 style screens. As explained below, the Patent Office determined the
`
`claimed combination of features to be novel and nonobvious over this art. Prior to
`
`the inventors, no one put together the combination of claimed features into one
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`tool—a tool that has proven to be a huge success. Petitioners’ invalidity arguments are
`
`based on a subset of art that was already considered and is actually less than
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`cumulative than the art considered.
`
`15
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`
`
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`Ex. 2013. Mr. Brumfield’s design showed early versions of new features that would be
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`integrated into his new tool, such as a price axis with price levels that would not move
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`every time the market changed in the manner of Figure 2, multiple active screen
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`elements such as areas to dynamically display indicators representing quantity
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`information relative to the price axis and cells associated with different price levels
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`along the price axis that could be selected by a single action to cause an order message
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`to be sent for an order at the corresponding price level. Ex. 2011, 692-700. The design
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`also included areas to display indicators representing working orders that have been
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`sent to the exchange but not yet filled. Id.
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`16
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`
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`Over an extensive period of time, Mr. Brumfield spent significant resources
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`(both time and money) working with technical consultants from TT to develop a
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`working prototype of the new GUI tool.2 Id. Once a functioning tool was developed
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`that could be tested for its intended purpose, Mr. Brumfield confirmed that the new
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`tool addressed the problem of speed and accuracy discussed above. Id. The ’132
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`patent describes this problem and how the invention addresses it at 2:60-67 and 7:47-
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`53. A video (used in court in litigation) illustrating how the claimed invention
`
`addresses this problem is attached as Exhibit 2014.
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`In addition, he learned that the tool provided the added and unexpected benefit
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`of solving another technical problem with the prior art. In particular, the interaction
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`of the axis and dynamic indicator elements of the new tool better represented the
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`market and changes in the market than prior art style screens. Ex. 2011, 703-706; Ex.
`
`2010, ¶ 33. For example, allowing the market indicators to move up and down relative
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`to the price (which is the result of the claimed juxtaposing of the dynamic indicators
`
`and the price axis that does not move price levels with each change in the market)
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`provided the ability for a user to enter orders more quickly and accurately at desired
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`2 At the time, TT had two businesses: (1) a product business, in which it sold its
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`trading application called X_Trader to banks and trading firms around the world; and
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`(2) a consulting business which provide computer programming/development
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`services to clients. Ex. 2011, pp. 720-721.
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`17
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`
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`prices relative to the market. Id. This resulted in the new tool identifying market
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`changes more precisely and being easier to use and less error prone (due to its
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`improved/more intuitive visualization) than the prior art style tools. Id. This improved
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`visualization is described in the patent at 7:15-46 and shown by comparing Figures 3
`
`and 4 which show an example embodiment at time 1 and time 2, before and after a
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`change in the market. A video (that was used in court in litigation) illustrating the
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`visualization difference between the prior Figure 2 style screens and the claimed
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`invention is attached at Ex. 2014.
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`Experienced people in the field did not even recognize the shortcomings in the
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`prior art recognized by Mr. Brumfield until after they saw the invention embodied in
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`TT’s MD Trader product. See, e.g., Ex. 2038, ¶ 6 (“MD Trader provided this speed
`
`benefit by providing for very accurate and fast order entry as compared to the
`
`preexisting screens because there was no risk of the fast order entry as compared to
`
`the preexisting systems . . . . MD Trader also had an improved display of the market
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`data such that a trader could easily see the ebb and flow of the market . . . . It was only
`
`after seeing the benefits of this new unusual screen [MD Trader] that people like
`
`myself realized the shortcomings of the preexisting systems.”); Ex. 2044, ¶¶ 10-12
`
`(“Once I started using the product [MD Trader], I saw that it was better than the
`
`preexisting order entry screens. In particular, it was faster in that by providing a more
`
`intuitive display, it reduced the time it takes for a trader to recognize opportunities.
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`Also, it allowed for order entry with less errors than preexisting systems . . . . The
`
`18
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`
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`combination of the more intuitive display and the fast and reliable order entry cause
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`MD Trader to be a faster tool than preexisting systems . . . . MD Trader provided a
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`significant change to the order entry screens that were prevalent at the time of its
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`release. Prior to the release of MD Trader, traders did not even perceive a problem
`
`with the old tools they were using. Only after seeing the benefits of MD Trader did
`
`people like myself realize the shortcomings of the preexisting systems.”); Ex. 2041, ¶ 6
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`(“For someone who is an active trader, MD Trader was a revolutionary product. Only
`
`after I saw MD Trader did I realize the severe shortcomings of the preexisting
`
`systems. Whoever came up with the ideas behind MD Trader was truly ‘thinking
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`outside of the box.’”).
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`In 1999, TT’s business was struggling. Ex. 2010, p. 713. Based on his belief that
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`the invention could turn the company around if TT developed it into a product,
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`Mr. Brumfield assigned the invention to TT and became an investor in the company.
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`Id., pp. 713-714. A significant part of the decision to assign the invention to TT was
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`based on the ability to patent the innovation so TT’s efforts at development and
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`commercialization could not be easily copied by others. Id. After the patent
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`application that led to the ’132 patent, from which the ’304 patent is a continuation,
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`was filed, TT completed development of the technology and released it as the “MD
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`Trader” tool—which was part of TT’s X_Trader product. Ex. 2011, 800. The
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`X_Trader product, with the MD Trader tool, is still TT’s flagship product today. See
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`id. at 715; see also Ex. 2015, X_Trader Website.
`
`19
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`
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`The MD Trader tool combined the claimed features discussed in detail below,
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`including the features of a static price axis, a dynamic display of indicators
`
`representing quantities where the indicators move relative to the price axis when the
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`market changes, an order entry region with a plurality of locations corresponding to
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`price levels along the price axis for receiving single action commands to set
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`parameters and to send an order.
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`
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`
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`
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`MD Trader
`
`
`
`Fig. 4 of the ’304 Patent
`
`This combination allowed for fast order entry with improved accuracy and a
`
`more precise visualization of the market changes. Ex. 2010, ¶ 33. The product also
`
`20
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`
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`included features from various dependent claims that recite additional innovative
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`features, such as regions for displaying working order indicators and that permit the
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`easy visualization and cancellation of such orders and a re-positioning feature. The
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`various inventions claimed in the ’304 patent do not only address the problems noted
`
`above, but also provided an order entry tool that combined various features that were
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`kept separate in the prior art (such as an order entry tool and displays of working
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`orders (sometimes called fill windows) in an innovative GUI that is materially simpler
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`and more efficient to use. See, e.g., Ex. 1001, 7:16-26.
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`Mr. Brumfield proved to be right—the invention was revolutionary, and turned
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`TT around. After a period of initial skepticism, the MD Trader product became a
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`huge commercial success, Ex. 2007, p. 34, and received widespread industry praise,
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`Ex. 2010, ¶ 32. The technology received many accolades from experienced people in
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`the industry. Id. Indeed, over thirty experienced third-party individuals in the field
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`signed declarations testifying to the benefits of the invention.3 Id.; see also Exs. 2016-
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`3 Petitioner has been provided voluminous amount of materials from litigation related
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`to the ’304 patent that has been ongoing for ten years, including the declarations cited
`
`herein. Ex. 2047. The litigation materials, including such declarations, depositions,
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`trial testimony, an extraordinary number of court pleadings and decisions, and
`
`hundreds of thousands, if not millions, of documents contain an overwhelming
`
`amount of evidence that contradicts assertions being made by Petitioners. What is
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`21
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`
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`2046. For example, the new technology was hailed as “a very significant departure
`
`from [systems that were available]” and “a stroke of genius . . . . I had not seen
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`anything like it before.” Ex. 2010, ¶ 32.
`
`
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`3.
`
`The Claims Recite the Technical Elements of the Inventive
`Tool
`The claims of the ’304 patent, never addressed in any detail in the petition,
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`recite detailed structural and functional features of an inventive GUI tool, that make
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`the claims novel and non-obvious. In particular, the claims recite static and dynamic
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`portions of the screen aligned in specific ways, multiple display regions to receive
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`input from a user, and areas for receiving single action order entry commands (which
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`is shorthand for displaying an order entry region with locations that receive
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`cited herein are just a few examples—examples that Petitioners either have or have
`
`access to. The sheer volume of this evidence and the fact that Petitioners have not
`
`bothered to identify contrary information in this evidence dictates against institution.
`
`This evidence also includes 20 consent judgments, with most of TT’s traditional
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`competitors finding the ’132/’304 patents valid, Exhibits 2063-2082, and numerous
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`settlements in which companies either dropped the invention from their product or
`
`took a license under the patents.
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`
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`22
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`
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`commands to send orders in the form of single action commands that both set a
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`plurality of parameters and cause an order message to be sent).
`
`In substance, all claims, whether in method, computer readable medium or
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`system format, of the ‘304 patent recite these features of the GUI tool. The novel
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`and non-obvious elements of all claims in the ‘304 patent are directed to the structure
`
`and makeup of the order entry tool (embodied in a GUI). None of the claims are
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`merely directed to a general method of placing an order or sending an order in
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`response to a single action of a user input device.
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`The claims require the above summarized combination of features of a GUI
`
`tool. In a decision affirming a verdict finding of infringement and validity of the ‘304
`
`and ’132 patents, the Federal Circuit summarized the patents as follows:
`
`The patents claim software …[t]he software’s graphical user interface
`(“GUI”) includes a ‘dynamic display for a plurality of bids and for a
`plurality of asks in the market for the commodity and a static display of
`prices corresponding to the plurality of bids and ask.’ [citing patent].
`The claimed invention facilitates more accurate and efficient orders in
`this trading environment.
`
`Trading Techs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1345 (Fed. Cir. 2010)
`(citations omitted).
`
`As shown below, that combination is why the patent was allowed over the
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`prior art. These and other technical features required by the ’304 patent claims are
`
`depicted in the chart below using claim 1 as an example.
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`23
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`
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`Claim Elements
`
`Graphical User Interface Elements
`
`1. A method for displaying
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`market information relating to
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`and facilitating trading of a
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`commodity being traded in an
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`electronic exchange having an
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`inside market with a highest
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`bid price and a lowest ask
`
`price on a graphical user
`
`interface, the method
`
`comprising:
`
`
`
`Graphical
`User
`Interface
`(GUI)
`
`
`
`24
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`
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`dynamically displaying a first
`
`
`
`indicator in one of a plurality
`
`of locations in a bid display
`
`region, each location in the
`
`bid display region
`
`corresponding to a price level
`
`along a common static price
`
`axis, the first indicator
`
`representing quantity
`
`associated with at least one
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`order to buy the commodity