throbber
Trials@uspto.gov
`571.272.7822
`
`
`
`
` Paper No. 18
` Entered: February 12, 2016
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TRADESTATION GROUP, INC. and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2015-00172
`Patent No. 7,783,556 B1
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`DECISION
` Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`
`
`
`
`I. INTRODUCTION
`
`A. Background
`
`TradeStation Group, Inc. and TradeStation Securities, Inc.
`
`(collectively, “Petitioner”) filed a Petition (Paper 2, “Pet.”) on August 12,
`
`2015, that requests review under the transitional program for covered
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`business method patents of the AIA1 of U.S. Patent No. 7,783,556 B1 (Ex.
`
`1001, “the ’556 patent”). Petitioner challenges the patentability of claims 1–
`
`22 (“the challenged claims”) of the ’556 patent under 35 U.S.C. § 101.
`
`Trading Technologies International, Inc. (“Patent Owner”) filed a Revised
`
`Preliminary Response on November 30, 2015. Paper 16 (“Prelim. Resp.”).
`
`We have jurisdiction under 35 U.S.C. § 324, which provides that a
`
`post-grant review may not be instituted “unless . . . the information
`
`presented in the petition . . . would demonstrate that it is more likely than not
`
`that at least 1 of the claims challenged in the petition is unpatentable.”
`
`We determine that the Petition demonstrates that it is more likely than
`
`not that the challenged claims are unpatentable under 35 U.S.C. § 101, and
`
`we institute a covered business method patent review of claims 1–22 of the
`
`’556 patent.
`
`
`
`
`
`B. Related Matters
`
`The ’556 patent is the subject of numerous related U.S. district court
`
`proceedings. Pet. 2–3; Paper 5, 2–6.
`
`Numerous patents are related to the ’556 patent, and the related
`
`patents are or were the subject of numerous petitions for covered business
`
`method patent review and reexamination proceedings. The table in the
`
`attached appendix indicates the related patents and corresponding
`
`proceedings.
`
`
`
`
`1 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
`
`
`2
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`C. The ’556 Patent
`
`
`
`The ’556 patent is titled “System and Method for Displaying Order
`
`Information in Relation to a Derivative of Price” and issued from an
`
`application filed on March 12, 2004. Ex. 1001, [54], [22]. The ’556 patent
`
`discloses that electronic exchanges provide data feeds to connected traders.
`
`See id. at col. 1, ll. 13–44. The data feeds are displayed to traders using “a
`
`variety of different formats, any of which would be known to one of
`
`ordinary skill in the art.” Id. at col. 1, ll. 45–47. The ’556 patent depicts
`
`two examples of typical displays or graphical user interfaces (“GUI”) in
`
`Figures 1 and 2. Id. at col. 1, l. 47–col. 2, l. 17.
`
`
`
`Figure 2 depicts an example prior art trading screen that is similar to a
`
`commercially available trading screen. Id. at col. 2, ll. 6–9. Figure 2 is
`
`reproduced below.
`
`
`
`
`
`3
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`

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`CBM2015-00172
`Patent 7,783,556 B1
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`
`
`Figure 2 depicts trading screen 200, which displays tradeable object
`
`information. Id. at col. 2, ll. 5–14. The tradeable object information
`
`includes bids 202 and offers 204 in association with a price values along axis
`
`206. Id. To place an order, a trader simply clicks on certain areas of the
`
`screen, such on one of bids 202. See id. at col. 2, ll. 14–17.
`
`
`
`The ’556 patent discloses that traders are often interested in
`
`information not normally provided in an exchange’s data feed or displayed
`
`on a trading screen and discloses that the traders must make “quick mental
`
`calculations, use charting software, or look to other sources” for this
`
`information. Id. at col. 2, ll. 18–33. The ’556 patent, thus, discloses “a
`
`system and method for display, on a trading screen, order information in
`
`relation to a derivative of price.” Id. at col. 2, ll. 34–38. A derivative of
`
`price is “anything that has some dependence on or relationship to price.” Id.
`
`at col. 3, ll. 33–34.
`
`
`
`
`
`
`
`
`
`
`
`
`
`Figure 8 of the ’556 patent is reproduced below.
`
`
`
`4
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`
`
`
`
`Figure 8 depicts an embodiment of a trading screen similar to trading
`
`screen 200 depicted in Figure 2, except that the value axis depicted in Figure
`
`8 includes price derivative information. The example price derivative
`
`information shown in Figure 8 is net change. Id. at col. 9, l. 51–col. 10, l. 6.
`
`Net change is the value at a current point minus value at a reference point.
`
`Id. at col. 9, ll. 63–64. For the example depicted in Figure 8, the reference
`
`point is set at yesterday’s settlement price in unit of ticks (i.e., the minimum
`
`change in a price value that is set by the exchange for each tradable object),
`
`which was “125.” Id. at col. 9, ll. 53–57. The last traded price, indicated by
`
`the “5” in the last traded quantity indicator column, is “230” and, thus, the
`
`net change is 230–125 or +105 at the last traded price. Id. at col. 9, ll. 57–
`
`62. As can be seen from Figure 8 above, a “+105” indicator is displayed
`
`next to the last traded price of “230.”
`
`
`
`The ’556 patent discloses another embodiment that has profit and loss
`
`as the price derivative information. Id. at col. 13, ll. 50–51.
`
`
`
`5
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`If a trader bought one lot of a particular tradeable object at
`“230,” then . . . the value axis might include at “0” associated
`with the price of “230,” and then “+1” associated with “231,”
`“+2” associated with “232,” and so on, and “-1” associated with
`“229,” “-2” associated with “228,” and so on.
`
`Id. at col. 13, ll. 50–58.
`
`
`
`Traders open long positions in a tradeable object by agreeing to buy a
`
`quantity of units of the tradeable object or open short positions by agreeing
`
`to sell a quantity of units of the tradeable objects. Pet. 7. A trader closes
`
`either position by buying or selling the same quantity of units as they
`
`currently own for the long position or are obligated to sell for a short
`
`position; thus, traders either make a profit, suffer a loss, or break even. Id.
`
`
`
`Claim 1 of the ’556 patent is illustrative of the challenged claims and
`
`is reproduced below:
`
`1. A method for displaying market information on a graphical
`user interface, the method comprising:
`
`receiving by a computing device a current highest bid price and
`a current lowest ask price for a tradeable object from an
`electronic exchange;
`
`identifying by the computer device a long or short position taken
`by a user with respect to the tradeable object, wherein the long
`position is associated with a quantity of the tradeable object that
`has been bought by the user at a price, and wherein the short
`position is associated with a quantity of the tradeable object that
`has been sold by the user at a price;
`
`computing by the computer device a plurality of values based on
`the long or short position, wherein each of the plurality of values
`represents a profit or loss if the long or short position is closed at
`a price level among a range of price levels for the tradeable
`object;
`
`displaying via the computing device the plurality of values along
`a value axis;
`
`
`
`6
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`displaying via the computing device a first indicator at a first
`location corresponding to a first value along the value axis,
`wherein the first indicator represents a particular price based on
`any of the following prices: current best bid, current best ask, and
`a last traded price, and wherein the first value represents a profit
`or loss incurred by the user if the long or short position is closed
`at a particular price; and
`
`moving the first indicator relative to the value axis to a second
`location corresponding to a second value along the value axis
`responsive to receipt of an update to the particular price, wherein
`the second value represents a profit or loss incurred by the user
`if the position is closed at the update to the particular price.
`
`
`
`D. Alleged Grounds of Unpatentability
`
`
`
`Petitioner sets forth grounds of unpatentability of the challenged
`
`claims as follows:
`
`Ground
`
`Challenged Claims
`
`§ 101 as falling outside the four
`
`12–22
`
`statutory categories of patentable
`
`subject matter
`
`§ 101 as being directed to an
`
`1–22
`
`abstract idea
`
`
`
`
`
`E. Expanded Panel Request
`
`Patent Owner suggests that the decision on institution be made by an
`
`expanded panel of administrative patent judges. Prelim. Resp. 60.
`
`Discretion to expand a panel rests with the Chief Judge, who, on behalf of
`
`the Director, may act to expand a panel on a suggestion from a judge or
`
`panel. AOL Inc. v. Coho Licensing LLC, IPR2014-00771, slip op. at 2
`
`(PTAB Mar. 24, 2015)(Paper 12)(informative). Patent Owner’s suggestion
`
`
`
`7
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`was considered by the Acting Chief Administrative Patent Judge, who
`
`declined to expand the panel.
`
`
`
`
`
`II. ANALYSIS2
`
`A. Requirements for Covered Business Method Patent Review
`
`Section 18 of the AIA provides for the creation of a transitional
`
`program for reviewing covered business method patents. Section 18 limits
`
`review to persons or their privies who have been sued or charged with
`
`infringement of a “covered business method patent,” which does not include
`
`patents for “technological inventions.” AIA §§ 18(a)(1)(B), 18(d)(1); see
`
`37 C.F.R. § 42.302.
`
`Petitioner and Patent Owner indicate that Petitioner was sued for
`
`infringement of the ’556 patent. Pet. 14–15; Paper 5, 2.
`
`
`
`i. Covered Business Method Patent
`
`a. Petitioner’s Argument
`
`
`
`Petitioner contends that the ’556 patent is a covered business method
`
`patent because it claims a method or corresponding apparatus for performing
`
`
`2 Both Petitioner and Patent Owner reference our prior decisions in related
`covered business method patent review proceedings and decisions of district
`courts in related proceedings. We do not give much, if any, deference to our
`prior decisions and the decisions of the district courts in determining
`whether to institute a covered business method patent review in this
`proceeding. Those prior decisions were based on different patents, different
`claims, different parties, different evidence, and in the case of the district
`court proceedings, different standards of proof and different claim
`construction standards. Additionally, we give no consideration to the
`arguments Patent Owner presents in letters sent to the Director of the United
`States Patent and Trademark Office.
`
`
`
`8
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`data processing or other operations used in the practice, administration, or
`
`management of a financial product or service. Pet. 15–19. Petitioner argues
`
`that method claim 1 and corresponding claim 12 are directed to financial
`
`activities because both claims recite a method that facilitates financial trades
`
`in an electronic market, as indicated by certain financial claim elements. Id.
`
`at 17. Those claim elements include: bid prices, ask prices, last trade prices,
`
`and calculating monetary profits or losses. Id. Petitioner further argues that
`
`the ’556 patent discloses that the claimed methods are applied to activities
`
`that are financial in nature. Id. at 17–18 (citing Ex. 1001, col. 4, ll. 13–21,
`
`29–38).
`
`
`
`b. Patent Owner’s Argument
`
`
`
`Patent Owner disputes that the ’556 patent qualifies for covered
`
`business method patent review. Prelim. Resp. 46–52. According to Patent
`
`Owner, “[p]atents claiming new and improved GUIs are not claiming
`
`business methods–making them ineligible for covered business method
`
`review.” Id. at 46. Patent Owner points to the legislative history and
`
`statements made by Senator Durbin to support its argument. Id. at 50–51
`
`(citing 157 Cong. Rec. S5428, 32–33 (daily ed. Sept. 8, 2011)).
`
`
`
`Patent Owner acknowledges that the claims of the ’556 patent include
`
`financial terms and that the claimed GUI can be used to place a trade. Id. at
`
`48–49. Patent Owner, however, argues that the Petitioner fails to establish
`
`that the claims are directed to processing of data for a financial service. Id.
`
`at 50, 52.
`
`
`
`
`
`9
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`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`c. Analysis
`
`A covered business method patent “claims a method or corresponding
`
`apparatus for performing data processing or other operations used in the
`
`practice, administration, or management of a financial product or service.”
`
`AIA § 18(d)(1).
`
`The “legislative history explains that the definition of covered
`
`business method patent was drafted to encompass patents ‘claiming
`
`activities that are financial in nature.’” Transitional Program for Covered
`
`Business Method Patents —Definitions of Covered Business Method Patent
`
`and Technological Invention, 77 Fed. Reg. 48,734, 48,735 (Aug. 14, 2012)
`
`(quoting 157 Cong. Rec. S5432 (daily ed. Sept. 8, 2011) (statement of Sen.
`
`Schumer)). The legislative history indicates that “financial product or
`
`service” should be interpreted broadly to “encompass patents ‘claiming
`
`activities that are financial in nature, incidental to a financial activity or
`
`complementary to a financial activity.’” Id.; see Versata Dev. Grp., Inc. v.
`
`SAP America, Inc., 793 F.3d 1306, 1323–26 (Fed. Cir. 2015).
`
`A patent need have only one claim directed to a covered business
`
`method to be eligible for review. 77 Fed. Reg. at 48,736 (Response to
`
`Comment 8).
`
`Claim 1 of the ’556 patent recites “[a] method for displaying market
`
`information on a graphical user interface.” Ex. 1001, col. 15, ll. 22–23.
`
`Claim 12 recites “[a] computer readable medium having program code(s)
`
`recorded thereon” for causing a computer to perform the method of claim 1.
`
`See id. at col. 16, ll. 44–46. The claimed method recites steps of: receiving
`
`financial data from an electronic exchange; identifying a long or short
`
`position taken by a user with respect to a tradeable object; computing a
`
`
`
`10
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`plurality of values based on the long or short position, wherein the values
`
`represent a profit or loss if the long or short potions closed at different price
`
`levels; and displaying the plurality of values along a value axis. The
`
`claimed method also recites steps of displaying a first indicator at a first
`
`location corresponding to a first value and moving the first indicator to a
`
`second location corresponding to a second value in response to receiving an
`
`update. The first indicator represents a particular price based upon the price
`
`of the current best bid, current best ask, and a last traded price.
`
`As can be seen from the above, the claims encompass processing
`
`financial data, associated with a tradeable object, for display. This
`
`processing of financial data is used in the practice, administration, or
`
`management of a tradeable object, which is a financial product (see Ex.
`
`1001, col. 4, ll. 32–39 (disclosing that tradeable objects include financial
`
`products)). Displaying financial market information for a financial object is
`
`an activity that is financial in nature.
`
`We determine, based on this record, that the ’556 patent is a covered
`
`business method patent because it “claims a method or corresponding
`
`apparatus for performing data processing or other operations used in the
`
`practice, administration, or management of a financial product or service”
`
`and claims “activities that are financial in nature, incidental to a financial
`
`activity or complementary to a financial activity.” AIA § 18(d)(1); 77 Fed.
`
`Reg. at 48,735.
`
`
`
`We are not persuaded by Patent Owner that the ’556 patent is not a
`
`covered business method patent because it does not claim processing data in
`
`a business context. Prelim. Resp. 49–50, 52. As discussed above, we
`
`determine that the ’556 patent is a covered business method patent because it
`
`
`
`11
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`

`CBM2015-00172
`Patent 7,783,556 B1
`
`claims a method or corresponding apparatus for performing data processing
`
`or other operations used in the practice, administration, or management of a
`
`financial product or service, as required by the statute.
`
`We also are not persuaded by Patent Owner’s argument that the
`
`legislative history of the AIA establishes that novel user interfaces for
`
`commodities, as a category, were intended to be exempt from covered
`
`business method patent review. Although the legislative history includes
`
`certain statements that certain novel software tools and graphical user
`
`interfaces that are used by the electronic trading industry worker are not the
`
`target of § 18 of the AIA (see Prelim. Resp. 63–64 (reproducing statements
`
`by Senator Durbin and Schumer)), the language of the AIA, as passed, does
`
`not include an exemption for all user interfaces for commodities from
`
`covered business method patent review. Each claimed invention must be
`
`evaluated individually to determine if it is eligible for a covered business
`
`method patent review. A determination of whether a patent is eligible for a
`
`covered business method patent review under the statute is made on a case-
`
`by-case basis on the facts of each case. 37 C.F.R. § 42.301(b).
`
`
`
`ii. Technological Invention Exception
`
`Even if a patent includes claims that would otherwise be eligible for
`
`treatment as a covered business method, review of the patent is precluded if
`
`the claims cover only “technological invention[s],” as defined by 37 C.F.R.
`
`§ 42.301(b). The definition of “covered business method patent” in
`
`§ 18(d)(1) of the AIA does not include patents for “technological
`
`inventions.”
`
`
`
`12
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`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`To determine whether a patent is for a technological invention, we consider
`
`“whether the claimed subject matter as a whole recites a technological
`
`feature that is novel and unobvious over the prior art; and solves a technical
`
`problem using a technical solution.” 37 C.F.R. § 42.301(b). Both prongs
`
`must be satisfied in order for the patent to be excluded as a technological
`
`invention. See Versata, 793 F.3d at 1326–7.
`
`The following claim drafting techniques, for example, typically do not
`
`render a patent a “technological invention”:
`
`(a) Mere recitation of known technologies, such as computer
`hardware, communication or computer networks, software,
`memory, computer-readable storage medium, scanners, display
`devices or databases, or specialized machines, such as an ATM
`or point of sale device.
`
`(b) Reciting the use of known prior art technology to accomplish
`a process or method, even if that process or method is novel and
`non-obvious.
`
`(c) Combining prior art structures to achieve the normal,
`expected, or predictable result of that combination.
`
`77 Fed. Reg. at 48,763–64.
`
`For the reasons discussed below, we determine that the ’556 patent is
`
`not for a technological invention because it does not solve a technical
`
`problem using a technical solution. We, thus, do not need to address
`
`whether the ’556 patent recites a technological feature that is novel and
`
`unobvious over the prior art.
`
`
`
`a. Petitioner’s Argument
`
`Petitioner contends that the ’556 patent does not solve a technical
`
`problem using a technical solution. Pet. 22. According to Petitioner, the
`
`’556 patent solves the problem of traders needing to “make quick mental
`
`
`
`13
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`

`CBM2015-00172
`Patent 7,783,556 B1
`
`calculations, using charting software, or look to other sources to provide
`
`additional insight beyond what is normally provided by an exchange or a
`
`typical trading screen,” which is not a technical problem. Id. (quoting Ex.
`
`1001, col. 2, ll. 28–30). Petitioner also argues “simply adding another well-
`
`known item of information . . . to a prior art trading screen” is not a technical
`
`solution. Id. at 23.
`
`
`
`b. Patent Owner’s Arguments
`
`
`
`Patent Owner argues that the ’556 patent solves a technical problem
`
`using a technical solution. Prelim. Resp. 57–58. According to Patent
`
`Owner, “because the claims recite a new GUI design (a new technology) that
`
`addressed the problem with the old GUI (the technology with the problem),
`
`the claimed GUI improvement necessarily claims a technical solution to a
`
`technological problem.” Id. at 57; see id. at 20–21.
`
`
`
`
`
`
`
`The ’556 patent discloses that:
`
`c. Analysis
`
`[i]n addition to viewing traditional-style trading screens, traders
`are often interested in analyzing other pieces of highly relevant
`information that are not normally provided in an electronic
`exchange’s data feed nor displayed by a trading screen. For
`instance, they might make quick mental calculations, use
`charting software, or look to other sources to provide additional
`insight beyond what is normally provided by an exchange or a
`typical trading screen. Some even trade directly off this
`information. Regardless of what source or sources a trader might
`use, it may be too difficult for the trader to quickly assimilate this
`highly relevant information from diverse and often unrelated
`sources or even effectively process all of the information to make
`informed trades.
`
`14
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`

`CBM2015-00172
`Patent 7,783,556 B1
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`Ex. 1001, col. 2, ll. 18– 30. The ’556 patent discloses that such information
`
`can be profit and loss information. Id. at col. 13, l. 50–col. 14, l. 3.
`
`
`
`As can be seen from the above, the problem disclosed in the ’556
`
`patent is that traders need additional information on a trading screen to
`
`effectively analyze the market. As Petitioner points out (Pet. 28–29), this is
`
`not a technical problem but a business problem.
`
`
`
`The ’556 patent also does not disclose a technical solution to this
`
`problem. As discussed above, mere recitations of known computer
`
`technology, such as display devices or software, and combinations of prior
`
`art structures to achieve the normal, expected, or predictable result of that
`
`combination do not render an invention technological. Taking claim 1 as
`
`representative, we are not persuaded on this record that the ’556 patent
`
`discloses a technological invention.
`
`Claim 1 of the ’556 patent requires “a method for displaying market
`
`information on a graphical user interface.” Ex. 1001, col. 15, ll. 22–23. The
`
`first step of the method is to receive information via computer for a tradeable
`
`object from an electronic exchange. Id. at col. 15, ll. 24–26. The ’556
`
`patent discloses that known electronic exchanges provide data feeds to
`
`connected traders’ computers. See id. at col. 1, ll. 13–30, col. 4, ll. 16–21.
`
`The data feeds typically include information such as best bid quantity and
`
`price; best ask quantity and price; last traded quantity; the previous day’s
`
`settlement price; the open price; and the closed price. Id. at col. 1, ll. 30–43.
`
`The ’556 patent discloses that trading screens or GUIs that display the
`
`information from the data feed are known. Id. at col. 1, l. 45–col. 2, l. 17;
`
`Figs. 1, 2. In particular, the ’556 patent discloses that one known trading
`
`
`
`15
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`

`CBM2015-00172
`Patent 7,783,556 B1
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`screen or GUI displays market information along a value axis having a range
`
`of price levels. Id. at col. 2, ll. 5–17; Fig. 2.
`
`Claim 1 requires a step of identifying via computer a long or short
`
`position taken by a user with respect to the tradeable object and further
`
`defines the long or short position. Id. at col. 15, ll. 27–33. The ’556 patent
`
`discloses that the user chooses a particular price derivative to display by
`
`inputting information through a GUI or command-line entry. See id. at
`
`col. 8, l. 37–col. 9, l. 6; Fig. 5. The ’556 patent discloses that inputting
`
`devices such as a keyboard or mouse are conventional. Id. at col. 6, ll. 26–
`
`31.
`
`Claim 1 also requires a step of computing via a computer a plurality
`
`of values based on the long or short position. The values represent a profit
`
`or loss if the long or short position is closed at a price level among a range of
`
`price levels. The ’556 patent discloses, “there are many ways to measure
`
`[profit and loss], all of which may be mapped to an axis.” Id. at col. 13,
`
`ll. 51–52; see also id. at col. 13, ll. 17–20 (disclosing that one of ordinary
`
`skill in the art can apply the disclosed principles to any values on an axis);
`
`col. 3, ll. 36–38 (disclosing that many different price derivatives would be
`
`“readily apparent to one of ordinary skill in the art”).
`
`
`
`Claim 1 further requires a step of displaying via computer a first
`
`indicator, which represents a particular price based upon the current best bid,
`
`current best ask, or last traded price, at a location corresponding to a first
`
`value along the value axis and a step of moving the first indicator to a
`
`second location corresponding to a second value along the value axis in
`
`response to receipt of an update to the particular price. The ’556 patent
`
`discloses a prior art trading screen or GUI that displays market information
`
`
`
`16
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`along a value axis having a range of price levels that move as the market
`
`updates. Id. at col. 2, ll. 5–17; Fig. 2.
`
`As can be seen from the above, the ’556 patent is not for a
`
`technological invention because it merely recites known computer
`
`technology, such as computer hardware, a display device or software, and
`
`combinations of prior art structures to achieve the normal, expected, or
`
`predictable result of that combination. On this record, we determine that the
`
`’556 patent does not solve a technical problem using a technical solution.
`
`The ’556 patent, thus, is eligible for covered business method patent review.
`
`
`
`B. Claim Construction
`
`In a covered business method patent review, the Board interprets
`
`claim terms in an unexpired patent according to the broadest reasonable
`
`construction in light of the specification of the patent in which they appear.
`
`37 C.F.R. § 42.300(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,
`
`1278–79 (Fed. Cir. 2015), cert. granted sub nom. Cuozzo Speed Techs., LLC
`
`v. Lee, 84 U.S.L.W. 3218 (U.S. Jan. 15, 2016) (No. 15-446).
`
`Under that standard, and absent any special definitions, we give claim
`
`terms their ordinary and customary meaning, as they would be understood
`
`by one of ordinary skill in the art at the time of the invention. In re
`
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special
`
`definitions for claim terms must be set forth with reasonable clarity,
`
`deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed.
`
`Cir. 1994).
`
`
`
`
`
`17
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`i. “computer readable medium having program code recorded thereon”
`
`
`
`Petitioner proposes that the broadest reasonable interpretation of the
`
`claim term “computer readable medium,” recited by claim 12, is “an
`
`intervening substance through which something else is transmitted or carried
`
`on.” Pet. 24. According to Petitioner, this is consistent with the ’556 patent
`
`which discloses that a computer readable medium could be “any medium
`
`that participates in providing instructions to processor for execution.” Id.
`
`(quoting Ex. 1001, col. 5, ll. 65–67).
`
`
`
`Patent Owner does not provide, expressly, a proposed construction of
`
`“computer readable medium” but indicates that the ’556 patent states that
`
`“computer readable medium” should be interpreted as “any medium that
`
`participates in providing instruction to [a] processor for execution.” Prelim.
`
`Resp. 35 (quoting Ex. 1001, col. 5, ll. 65–67). Patent Owner acknowledges
`
`that, although the ’556 patent lists a number of non-transitory media as
`
`examples, the ’556 also states that acceptable media can be “any other
`
`medium from which a computer can read.” Prelim. Resp. 35 (discussing Ex.
`
`1001, col. 5, l. 67–col. 6, l. 13). Patent Owner argues that the addition of the
`
`phrase “having program code recorded thereon” limits the claims to non-
`
`transitory media, because the use of the word “recorded.” Prelim. Resp. 35–
`
`36.
`
`
`
`The ’556 patent states that “the term computer readable medium, as
`
`used herein, refers to any medium that participates in providing instruction
`
`to [a] processor for execution” (Ex. 1001, col. 5, ll. 65–67), and, thus, the
`
`’556 patent sets forth a definition of “computer readable medium.” This
`
`definition includes transitory and non-transitory media. See Ex. 1001, col. 5,
`
`l. 67–col. 6, 1. 13 (disclosing that such media is “not limited to” the listed
`
`
`
`18
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`exemplary non-transitory media and can be “any other medium from which
`
`a computer can read”).
`
`
`
`The addition of the phrase “having program code recorded thereon” to
`
`“the computer readable medium,” does not limit the medium to non-
`
`transitory media. A definition of the verb “record” is “to set down in
`
`writing” or “to cause (as sound, visual images, or data) to be registered on
`
`something (as a disc or magnetic tape) in reproducible form).” Ex. 3001
`
`(Merriam-Webster’s Collegiate Dictionary, 10th ed. definition of record).
`
`This definition does not preclude the program code from being recorded,
`
`albeit temporarily, on transitory media. See Ex parte Mewherter, 2012-
`
`007692, slip. op. 5–14 (PTAB May 8, 2013) (precedential) (determining that
`
`a computer readable storage medium having a computer program stored
`
`thereon encompasses transitory propagating signals). This is consistent
`
`with the ’556 patent, which discloses that the “information can be stored
`
`(temporarily or otherwise) on any computer readable medium” (Ex. 1001,
`
`col. 5, ll. 63–64).
`
`
`
`On this record, we determine that the broadest reasonable
`
`interpretation of “computer readable medium have program code recorded
`
`thereon” is any medium that participates in providing instruction to a
`
`processor for execution and having program code recorded thereon.
`
`
`
`
`
`ii. Other Terms
`
`We do not need to construe any other claim terms for the purpose of
`
`our decision.
`
`
`
`
`
`19
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`D. Patent Subject Matter Eligibility
`
`i. Claims 1–22
`
`a. Petitioner’s Arguments
`
`
`
`Petitioner contends that claims 1–22 are unpatentable under 35 U.S.C.
`
`§ 101 as being directed to ineligible subject matter. Pet. 25–46. According
`
`to Petitioner, the claims are directed to the abstract idea of “providing a
`
`trader with financial information to facilitate market trades.” Id. at 27.
`
`Petitioner further argues that the claimed steps are all “activities [that] can
`
`be, and traditionally were, performed in pre-electronic, brick-and-mortar
`
`markets” and that the use of a computing device or GUI does not make the
`
`claim any less abstract. Id. at 29–30 (citing Ex. 1001, col. 2, ll. 22–23), 30–
`
`34.
`
`
`
`
`
`b. Patent Owner’s Arguments
`
`Patent Owner disputes that claims 1–22 are directed to patent
`
`ineligible subject matter. Prelim. Resp. 10–34. According to Patent Owner,
`
`the claims of the ’556 patent are not directed to an abstract idea but to the
`
`features of a GUI tool and recite an inventive concept other than an abstract
`
`idea. Prelim. Resp. 13–34. Patent Owner points to the following specific
`
`combination of GUI features as the inventive concept: creating a value axis
`
`with a plurality of values representing profit or loss based on a position
`
`taken by the trader, displaying an indicator representing a type of price at a
`
`first location corresponding to a value along the value axis, and moving the
`
`indicator to a second location corresponding to a value along the value axis
`
`based on receipt of an update from the electronic exchange. Id. at 16.
`
`
`
`
`
`20
`
`

`

`CBM2015-00172
`Patent 7,783,556 B1
`
`
`Patent-eligible subject matter is defined in § 101 of the Patent Act,
`
`c. Analysis
`
`which recites:
`
`Whoever invents or discovers any new and useful process,
`machine, manufacture, or composition of matter, or any new and
`useful improvement thereof, may obtain a

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