`
`
` Paper No. ____
` Filed: March 20, 2017
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`__________________
`
`IBG LLC; INTERACTIVE BROKERS LLC;
`TRADESTATION GROUP, INC.; TRADESTATION SECURITIES, INC.;
`TRADESTATION TECHNOLOGIES, INC.; and
`IBFX, INC.
`
`Petitioners
`
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`
`Case CBM2015-00179
`U.S. Patent 7,533,056 B2
`_________________
`
`PATENT OWNER’S REQUEST FOR REHEARING
`
`
`
`
`
`
`
`
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`I.
`
`INTRODUCTION
`
`Patent Owner respectfully requests rehearing on just two issues.1 First,
`
`Patent Owner seeks rehearing on the Board’s finding that dependent claims 5-7 of
`
`the ‘056 patent are obvious under 35 U.S.C. § 103. Patent Owner believes that the
`
`Board misapprehended and/or overlooked an important fact about the TSE
`
`reference, which was the primary referenced relied upon by the Board.
`
`Specifically, as demonstrated below, the Board found that TSE’s Board Screen
`
`shows a user’s own order at a location that corresponds to price levels along a
`
`price axis, and yet this Board previously found (correctly) in a closely related
`
`CBM proceeding involving the ‘999 patent (CBM2016-00032) that TSE’s Board
`
`Screen does not show a user’s own order placed by the trader, but instead only
`
`shows the aggregate quantity of orders in the market.
`
`Thus, the final decision in this proceeding conflicts with this Board’s
`
`previous findings in connection with the closely related ‘999 patent. Because the
`
`Board correctly found in the ‘999 CBM proceeding that TSE does not show the
`
`
`1 Patent Owner respectfully disagrees with other determinations made by the
`
`PTAB, but has elected not to ask for rehearing on those issues at this time. By
`
`doing so, Patent Owner is not waiving its right to take these issues up on appeal at
`
`the Federal Circuit.
`
`1
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`trader’s own orders along a price axis, and because dependent claims 5-7 of the
`
`‘056 by their plain terms require showing the user’s own orders, these dependent
`
`claims cannot be rendered obvious by TSE.
`
`Second, Patent Owner seeks rehearing on the Board’s finding that these
`
`same dependent claims 5-7 do not meet 35 U.S.C. § 101. As demonstrated below,
`
`the Board also overlooked that these dependent claims do recite an inventive
`
`concept and therefore meet § 101.
`
`In sum, Patent Owner respectfully requests that this Board find that
`
`Petitioners have failed to show, by a preponderance of the evidence, that claims 5-
`
`7 are unpatentable under § 103. Patent Owner also requests that this Board find
`
`that these same dependent claims satisfy § 101.
`
`II. TSE CANNOT RENDER CLAIMS 5-7 OF THE ‘056 PATENT
`OBVIOUS BECAUSE IT DOES NOT INCLUDE AN ORDER ICON
`INDICATING THE USER’S ORDER IN THE BOARD SCREEN
`
`A. This Board Previously Rejected Petitioner’s Argument in a
`Related CBM
`
`The ‘999 patent at issue in the pending proceeding CBM2016-00032 is
`
`closely related to the ‘056 patent at issue here. They each have the same
`
`specification. In fact, the ‘056 patent is a direct continuation of the ‘999 patent.
`
`The ‘999 patent is referred to as the “drag and drop” patent because the
`
`claims are generally directed to, among other things, displaying an order icon,
`
`selecting that order icon, and then moving (e.g., dragging) that order icon to a
`
`2
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`location associated with a price along a price axis to send a trade order.
`
`Specifically, the “order icon” element of the independent claims states that the
`
`order icon is “associated with an order by the user for a particular quantity of the
`
`item.” IBG LLC et al. v. Trading Technologies Int’l, Inc., CBM2016-00032, Paper
`
`16, p. 4-5 (P.T.A.B. Aug. 6, 2016). Notably, the dependent claims 5-7 of the ‘056
`
`patent at issue here have a virtually identical “order icon” limitation, namely, “an
`
`order icon at a location that corresponds to the desired price level along the price
`
`axis, the order icon indicating the user’s order at the electronic exchange.” Ex.
`
`1001, 14:37-48 (emphasis added).
`
`In its ruling denying institution on § 103 grounds in the ‘999 CBM
`
`proceeding, the Board first noted that “Petitioner relies upon the quantity numbers
`
`in column 12 of TSE’s Board/Quotation Screen to teach the claimed order icons.
`
`Pet. 43-45.” IBG, CBM2016-00032, Paper 16 at 26 (emphasis added). The Board
`
`then concluded, “[a]s Patent Owner points out (Prelim. Resp. 30), however, the
`
`quantity numbers in column 12 of TSE’s Board Quotation Screen do not represent
`
`the quantity of an individual order placed by the trader but the aggregate quantity
`
`of orders in the market.” Id. (emphasis added). Thus, the Board has already found
`
`that TSE only shows aggregate orders and not the user’s order.
`
`3
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`B. Here, The Board Has Concluded That TSE’s Board Screen
`Discloses Individual User Orders, Contrary to the Previous
`Conclusion in the ‘999 CBM
`
`As set forth above, the dependent claims 5-7 of the ‘056 patent require an
`
`order icon that indicates the user’s own order. POR at 4, 7-9, 64-67. The Board
`
`concluded that TSE has this element. In particular, the Board concluded that “TSE
`
`meets all of the elements of the claim limitations with the exception of a default
`
`quantity and graphical displays.” Paper 141, p. 49. This conclusion, however,
`
`overlooks the fact that TSE only shows aggregate orders and does not indicate the
`
`user’s own orders, as the plain language of dependent claims 5-7 requires.
`
`Because claims 5-7 require showing the user’s order at a desired price level
`
`along a price axis, and because TSE only shows aggregate order and not the user’s
`
`own orders, claims 5-7 cannot be deemed obvious over TSE and the other
`
`references of record. As such, Patent Owner respectfully requests that this Board
`
`find that Petitioners has failed to show, by a preponderance of the evidence, that
`
`claims 5-7 are unpatentable under § 103.
`
`1.
`
`The “Order Icon” In Claim 5 Must Show The User’s Own
`Orders
`
`A person of ordinary skill in the art (“POSA”) reading the claims and
`
`specification of the ‘056 patent would understand that an “order icon” must show
`
`the user’s own individual orders. POR at 4, 7-9, 64-67.
`
`As set forth above, the plain language of claim 5 requires that the “order
`
`4
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`icon” indicate the user’s own individual order. Specifically, claim 5, which
`
`depends from independent claim 1, recites “displaying an order icon at a location
`
`that corresponds to the desired price level along the price axis, the order icon
`
`indicating the user’s order at the electronic exchange.” Ex. 1001, 14:37-40
`
`(emphasis added). A POSA reading the claims would understand dependent claim
`
`5’s “order icon indicating the user’s order at the electronic exchange” must
`
`indicate, to the user, that the user has an order at a particular price level along the
`
`price axis by displaying the order icon at the price level. Ex.2169, ¶46.
`
`The specification also dictates this reading of the claims. With respect to
`
`exemplary user order indicators, the ’056 Patent (referring to Figure 3A) discloses:
`
`The priority view 312 offers several other advantages to a
`
`trader. The offers 304 and the bids 300 are displayed in
`
`different colors, shapes, textures or sizes, or other
`
`distinguishing visual characteristics, to allow the trader to
`
`quickly ascertain the current state of the market for this
`
`item. Additionally, orders made by the trader are
`
`displayed having a different visual characteristic than the
`
`visual characteristic used to display orders of other
`
`traders. This allows the trader to easily distinguish
`
`between their own orders and the orders of other traders.
`
`For example, in FIG. 3a, the trader is able to
`
`immediately determine that offers 304(3) and 304(7)
`
`are the trader's own offers 304, and therefore should be
`
`5
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`discounted from any market analysis. In FIG. 3a, the
`
`trader can also quickly determine that the trader himself
`
`is the trader with the most bids 300 in place, which
`
`suggests to the trader that the value for the item may be
`
`driven down if the trader removes his bids 300 from the
`
`pit 220.
`
`Ex.1001, 7:66-8:15 (emphasis added). As such, the claimed “order icon”
`
`distinguishes the trader’s own orders from the market’s aggregated orders and
`
`identifies that the user/trader has an order at the price where the “order icon” is
`
`displayed.
`
`This interpretation is supported by other claims in the ‘056 patent. For
`
`example, independent claim 1 recites “bid indicators” and “offer indicators” and,
`
`as such, the separately-claimed “order icon” in dependent claim 5 must represent
`
`something distinct from the “[bid/offer] indicators.” See Symantec Corp. v.
`
`Computer Assocs. Int’l, Inc., 522 F.3d 1279, 1289 (Fed. Cir. 2008) (“the general
`
`assumption is that different terms have different meanings”); see Ex.2169, ¶49. In
`
`other words, if either the aggregate quantity of bid indicators or the aggregate
`
`quantity of offer indicators were considered the claimed “order icon indicating the
`
`user’s order” set forth in dependent claim 5, this claimed “order icon” would be
`
`deemed superfluous because independent claim 1 already recites a display of a
`
`plurality of bid indicators and a plurality of ask indicators.
`
`6
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`Similarly, dependent claim 6, which depends from claim 5, requires that the
`
`bid indicators, offer indicators, and “order icon indicating the user’s order” be
`
`displayed using distinct visual characteristics such that the user can easily discern
`
`them. Ex.1001, 14:41-45. In order for these three items have “distinct visual
`
`characteristics,” an aggregate quantity of bid indicators or offer indicators cannot
`
`also represent the claimed “order icon indicating the user’s order” because, if this
`
`were true, the “order icon indicating the user’s order” could not have a distinct
`
`visual characteristic from the bid/offer indicators. As such, an “order icon
`
`indicating the user’s order at the electronic exchange” must be an icon indicating to
`
`the user that the user has an order distinct from other orders.
`
`Finally, claim 7, which also depends from claim 5, requires that the order
`
`icon indicate the default quantity working at the electronic exchange. Independent
`
`claim 1 recites receiving “a user input indicating a default quantity to be used to
`
`determine a quantity for each of a plurality orders to be placed by the user.” Ex.
`
`1001, 14:15-18. Clearly, in order for the “order icon” to indicate the default
`
`quantity selected by the user, the order icon must indicate the user’s own order.
`
`In its final written decision here, the Board concluded that and “order icon”
`
`should be interpreted to cover the display of aggregate orders in the market. Paper
`
`141 at 16-17. However, the Board misapprehended and/or overlooked that this
`
`construction is directly at odds with how it viewed the identical “order icon”
`
`7
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`limitation in the related ‘999 patent. Specifically, as set forth above, claim 1 of the
`
`‘999 patent states “displaying an order icon associated with an order by the user
`
`for a particular quantity of the item.” IBG, CBM2016-00032, Paper 16 at 5
`
`(emphasis added). Likewise, dependent claim 5 of the ‘056 recites “an order icon
`
`at a location that corresponds to the desired price level along the price axis, the
`
`order icon indicating the user’s order at the electronic exchange.” Ex. 1001,
`
`14:37-40 (emphasis added).
`
`In the CBM proceeding for the ‘999 patent, the Board found that a display of
`
`aggregate orders does not meet the “order icon” limitation in the ’999 patent
`
`because an “order icon” must show the user’s own orders. The same logic should
`
`apply to the “order icon” limitation at issue here.
`
`III. Dependent Claims 5-7 Satisfy § 101 Because They Recite An Inventive
`Concept
`
`Finally, Board also overlooked that these same dependent claims (5-7) recite
`
`an inventive concept. For instance, the claims as a whole provide an
`
`unconventional combination of “receiving a user input indicating a desired price
`
`for an order to be placed by the user, the desired price being specified by selection
`
`of one of a plurality of locations corresponding to price levels along the price axis”
`
`along with displaying bid and offer indicators corresponding to the same price axis.
`
`POR at 26. While the Board recognized that the law requires review of a claim as
`
`an ordered combination, the analysis focused on individual claim elements and
`
`8
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`overlooked that the claimed combination as a whole. The claimed unconventional
`
`combination of elements as a whole improves the visualization, usability and speed
`
`of prior systems, and thus constitutes an inventive concept. Like CQG, the
`
`“specific structure and concordant functionality of the graphical user interface are
`
`removed
`
`from abstract
`
`ideas, as compared
`
`to conventional computer
`
`implementations of known procedures. Trading Technologies International, Inc. v.
`
`CQG, Inc. et al. (“CQG”), No. 2016-1616, 2017 WL 192716, *3 (Fed. Cir. Jan. 18,
`
`2017) (explaining that “ineligible claims generally lack steps or limitations specific
`
`to a solution of a problem, or improvement in the functioning of technology”).
`
`Thus, the Board failed to take into account the Federal Circuit’s guidance in
`
`assessing that these claims are directed to an inventive concept.
`
`IV. CONCLUSION
`
`For the foregoing reasons, Patent Owner respectfully requests that this Board
`
`reconsider its Decision and find that dependent claims 5-7 are not rendered
`
`obvious under § 103, and that dependent claims 5-7 also recite an inventive
`
`concept and satisfy § 101.
`
`
`
`9
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`Respectfully submitted,
`
`MCDONNELL BOEHNEN HULBERT &
`BERGHOFF LLP
`
`/Jennifer M. Kurcz/
`
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`
`Counsel for Patent Owner
`
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001
`
`
`
`
`
`
`Date: March 20, 2017
`
`10
`
`
`
`CBM2015-00179
`U.S. Patent 7,533,056
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing PATENT
`
`
`
`OWNER’S REQUEST FOR REHEARING was served on March 20, 2017 via
`
`email directed to counsel of record for the Petitioner at the following:
`
`Robert Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-ptab@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`CBM41919-0007CP1@fr.com
`
`PTAB@skgf.com
`
`
`
`
`
`/Jennifer M. Kurcz /
`Jennifer M. Kurcz,
`Counsel for Patent Owner
`Reg. No. 54,481
`
`
`
`Dated: March 20, 2017
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`11
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
