throbber
Trials@uspto.gov
`Tel: 571-272-7822
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`
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`
`
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` Paper 19
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`
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` Entered: December 2, 2014
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`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.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`CBM 2014-00131
`Patent 7,533,056 B2
`_______________
`
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`PHILIP J. HOFFMANN, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`DECISION
`Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`
`
`
`
`

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`CBM2014-00131
`Patent 7,533,056 B2
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`
`I. INTRODUCTION
`
`TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
`
`Ameritrade Online Holdings Corp., (collectively, “Petitioner”) filed a
`
`Petition on May 19, 2014, requesting a covered business method patent
`
`review of claims 1–15 of U.S. Patent No. 7,533,056 B2 (Ex. 1001, “the ’056
`
`patent”). Paper 4 (“Pet.”). In response, Trading Technologies International,
`
`Inc. (“Patent Owner”) filed a Patent Owner Preliminary Response on
`
`September 3, 2014. Paper 17 (“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.”
`
`Pursuant to 35 U.S.C. § 324, the Board authorizes a covered business
`
`method patent review to be instituted as to claims 1–15 of the ’056 patent.
`
`A. Related Matters
`
`Petitioner and Patent Owner identify numerous related U.S. district
`
`court cases. Pet. 2–3; Paper 7, 2–3. In compliance with 37 C.F.R.
`
`§ 42.302(a), Petitioner certifies that it has been sued for infringement of the
`
`’056 patent in TTI v. thinkorswim Group, Inc., No. 1:10-cv-00883 (N.D.
`
`Ill.). Pet. 3–4. Patent Owner does not challenge Petitioner’s certification
`
`that it has been sued for patent infringement of the ’056 patent.
`
`B. The ’056 Patent
`
`The Specification of the ’056 patent describes a user interface for an
`
`electronic trading system that allows a remote trader to view trends for an
`
`
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`Patent 7,533,056 B2
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`item, which assists the trader to anticipate demand for an item. Ex. 1001,
`
`2:8–26.
`
`C. Illustrative Claim
`
`Claim 1 is of the ’056 patent is the only independent claim:
`
` A method of operation used by a computer for
`displaying transactional information and facilitating trading
`in a system where orders comprise a bid type or an offer
`type, the method comprising:
`
`1.
`
`
`
`receiving bid and offer information for a product from an
`electronic exchange, the bid and offer information
`indicating a plurality of bid orders and a plurality of offer
`orders for the product;
`
`displaying a plurality of bid indicators representing
`quantity associated with the plurality of bid orders, the
`plurality of bid indicators being displayed at locations
`corresponding to prices of the plurality of bid orders
`along a price axis;
`
`displaying a plurality of offer indicators representing
`quantity associated with the plurality of offer orders, the
`plurality of offer indicators being displayed at locations
`corresponding to prices of the plurality of offer orders
`along the price axis;
`
`receiving a user input indicating a default quantity to be
`used to determine a quantity for each of a plurality of
`orders to be placed by the user at one or more price
`levels;
`
`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; and
`3
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`CBM2014-00131
`Patent 7,533,056 B2
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`
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`sending the order for the default quantity at the desired
`price to the electronic exchange.
`
`D. Asserted Grounds of Unpatentability
`
`Petitioner contends that claims 1–15 of the ’056 patent are
`
`unpatentable based on the following specific grounds:
`
`References
`
`n/a
`
`n/a
`
`n/a
`TSE1 and Togher2
`TSE, Togher, and Schott3
`Silverman4, Togher, and Hogan5
`
`
`Basis
`
`§ 101
`
`§ 112, ¶ 1
`
`§ 112, ¶ 2
`
`§ 103
`
`§ 103
`
`§ 103
`
`Challenged
`
`Claim(s)
`
`1–15
`
`1–15
`
`7
`
`1–5, 7, and 9–14
`
`1–15
`
`1–15
`
`E. Covered Business Method Patent
`
`A covered business method patent is “a patent that 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, except that the term does not include patents for technological
`
`inventions.” Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125
`
`
`1TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1004) (“TSE”).
`2 U.S. Patent No. 5,375,055, issued Dec. 20, 1994 (Ex. 1008) (“Togher”).
`3 U.S. Patent No. 5,619,631, issued Apr. 8, 1997 (Ex. 1009) (“Schott”).
`4 U.S. Patent No. 5,136,501, issued Aug. 4, 1992 (Ex. 1010) (“Silverman”).
`4
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`CBM2014-00131
`Patent 7,533,056 B2
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`Stat. 284, 329 (2011) (“AIA”) §§ 18(a)(1)(B), 18(d)(1); see 37 C.F.R. §
`
`42.302. 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). For purposes of determining whether a patent is eligible for a
`
`covered business method patent review, the focus is on the claims. A patent
`
`need have only one claim directed to a covered business method to be
`
`eligible for review.
`
`Petitioner has shown that the ’056 patent is a patent that claims a
`
`method for performing data processing or other operations used in the
`
`practice, administration, or management of a financial product or service.
`
`Pet. 5. Claim 1, the sole independent claim, recites a method of receiving
`
`bid and offer information of a product from an electronic exchange,
`
`displaying the bid and offer information, receiving a user input indicating a
`
`default quantity and price for an order(s), and sending the order(s) to an
`
`electronic exchange. As such, claim 1 is directed to a method for
`
`performing data processing or other operations used in the practice,
`
`administration, or management of a financial service (facilitating trading in
`
`an electronic exchange).
`
`Patent Owner argues that none of the claims are directed to a method
`
`for performing data processing or other operations used in the practice,
`
`administration, or management of a financial product or service—a method
`
`
`5 U.S. Patent No. 5,414,809, issued May 9, 1995 (Ex. 1011) (“Hogan”).
`5
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`Patent 7,533,056 B2
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`of doing business. Patent Owner argues that the claims are directed to
`
`structural and functional features embodied in a graphical user interface
`
`(“GUI”) tool, and not in any business method or practice, directing attention
`
`to legislative history in support of Patent Owner’s arguments. Prelim. Resp.
`
`12–21. The argument is not persuasive. Claim 1 is directed to a method
`
`“for displaying transactional information and facilitating trading in a
`
`system.” (emphasis added). Patent Owner has not explained why
`
`facilitating trading in a system is not a method of doing business. Instead,
`
`Patent Owner’s emphasis on structural and functional features that are
`
`embodied in a GUI tool is misplaced, because such structure and features are
`
`not claimed. Method claim 1 recites steps for displaying transactional
`
`information and facilitating trading in a system using a computer. Claim 1
`
`does not recite specific hardware or software for performing the steps of
`
`method claim 1, or a GUI tool.
`
`As indicated above, 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). Petitioner asserts that the ’056 patent
`
`claims fail to recite any technological feature that is novel and unobvious
`
`over the prior art, and do not solve a technical problem with a technical
`
`solution. Pet. 5. As pointed out by Petitioner, the claims are directed to
`
`well-understood, routine, and conventional steps of receiving market
`
`information, displaying it graphically to a trader, who uses the information
`
`to facilitate trading a commodity. Id.
`
`The “BACKGROUND OF THE INVENTION” section of the ’056
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`Patent 7,533,056 B2
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`patent explains that it was well known for an exchange to record all
`
`transactions for a particular item and to replay or post to the individual
`
`traders outstanding bids with the highest values and outstanding offers with
`
`the lowest value, along with a quantity specified for each order, to facilitate
`
`trading a commodity. Ex. 1001, 1:37–41. There is no indication in the ’056
`
`patent that the inventors invented gathering market information, displaying it
`
`to a trader, and using the information to facilitate trading a commodity. The
`
`use of a computer to perform these functions also was known in the art at the
`
`time of the invention and the ’056 patent does not claim any improvement of
`
`a computing device.
`
`Patent Owner argues that the ’056 patent is for a technological
`
`invention because the claims are directed to a novel and nonobvious GUI
`
`tool that operates to compile and present information in an intuitive format
`
`that allows a user to quickly and effectively interpret the information and
`
`provide input. See, e.g., Prelim. Resp. 2. We disagree that claim 1, for
`
`example, is directed to a novel and nonobvious GUI tool, or that presenting
`
`market information in an intuitive format makes a meaningful distinction for
`
`purposes of determining whether a claim is to a technological invention. As
`
`explained above, claim 1 is directed to gathering market information,
`
`displaying it to a trader, and the trader using the information to facilitate
`
`trading a commodity, features that were well known at the time of the
`
`invention. Moreover, there is no specific computer, program, or processing
`
`described in the ’056 patent beyond what was known in the art at the time of
`
`the invention.
`
`We also are not persuaded by Patent Owner’s arguments that the
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`Patent 7,533,056 B2
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`claimed subject matter as a whole solves a technical problem using a
`
`technical solution. See, e.g., id. at 7–8. The problem noted in the
`
`Specification of the ’056 patent is not a technical one. For instance, the ’056
`
`patent Specification highlights the problem and importance of informing a
`
`trader of certain stock market events so that the trader may use such
`
`information to facilitate trading a commodity. Ex. 1001, 2:19–26.
`
`However, informing a trader of certain stock market trends or events is more
`
`of a financial problem than a technical problem.
`
`For the foregoing reasons, the subject matter of claim 1 is not a
`
`“technological invention” under 37 C.F.R. § 42.301(b). Accordingly, the
`
`’056 patent is eligible for a covered business method patent review.
`
`II. ANALYSIS
`
`A. Claim Construction
`
`In a covered business method patent review, claim terms in an
`
`unexpired patent are given their broadest reasonable construction in light of
`
`the specification of the patent in which they appear. 37 C.F.R. § 42.300(b).
`
`Under the broadest reasonable construction standard, claim terms are given
`
`their ordinary and customary meaning, as would be understood by one of
`
`ordinary skill in the art in the context of the entire disclosure. In re
`
`Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special
`
`definition for a claim term must be set forth with reasonable clarity,
`
`deliberateness, and precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
`
`1994).
`
`
`
`8
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`
`Price axis
`
`Claim 1 recites displaying a plurality of bid indicators and offer
`
`indicators along a price axis. Petitioner argues that the broadest reasonable
`
`interpretation of a price axis is “a reference line for plotting prices, including
`
`labeled, unlabeled, visible[,] and invisible reference lines.” Pet. 10.
`
`Petitioner argues that the term “‘price axis’” does not appear in the
`
`Specification of the ’056 patent, other than the claims, and there is no
`
`disavowal of unlabeled price axes. Id. Petitioner also directs attention to
`
`various portions of the Specification that describes a value axis, and to other
`
`extrinsic evidence in ascertaining the meaning of price axis. Id. at 10–11.
`
`Patent Owner does not dispute the proposed construction.
`
`We have considered Petitioner’s proposed construction and find it to
`
`be the broadest reasonable based on the record before us. Accordingly,
`
`“price axis” means “a reference line for plotting prices, including labeled,
`
`unlabeled, visible, and invisible reference lines.”
`
`offer and bid indicators “representing quantity”
`
`Claim 1 recites displaying a plurality of bid/offer indicators
`
`representing quantity associated with the plurality of bid/offer orders.
`
`Petitioner argues, directing attention to claim 8 and supporting evidence, that
`
`the broadest reasonable interpretation of the indicators representing quantity
`
`includes alphanumeric and graphical indicators. Id. at 11; Ex. 1032 ¶ 74.
`
`Patent Owner does not dispute the proposed construction.
`
`We have considered Petitioner’s proposed construction and find it to
`
`be the broadest reasonable construction based on the record before us.
`
`Accordingly, indicators representing quantity include alphanumeric and
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`graphical indicators.
`
`indicators, icons, and tokens
`
`Claim 1 recites displaying a plurality of bid indicators. Claim 5,
`
`which depends from claim 1, includes an “order icon.” Claim 15, which
`
`depends from claim 1, includes an “order token.” Petitioner argues that
`
`although the plain and ordinary meaning of indicators, icons and tokens may
`
`be slightly different, for purposes of the claims, and in light of the
`
`Specification, the three terms are interchangeable, such that each
`
`encompasses alphanumeric symbols or graphical representations of items.
`
`Id. at 13–14; Ex. 1032 ¶¶ 80–83. Patent Owner does not dispute Petitioner’s
`
`proposed construction.
`
`We have considered Petitioner’s proposed construction and find it to
`
`be the broadest reasonable construction based on the record before us.
`
`Accordingly, an indicator, icon, or token encompass alphanumeric symbols
`
`or graphical representations of items.
`
`Default quantity
`
`Claim 1 recites “receiving a user input indicating a default quantity.”
`
`Petitioner argues that the term “default quantity” was added per amendment
`
`and does not exist in the Specification as originally filed. Accordingly,
`
`Petitioner relies on dictionary definitions and expert testimony to propose
`
`that the broadest reasonable interpretation of a default quantity is a standard
`
`or preset value to be used if the user does not specify another value. Id. at
`
`12; Ex. 1024, 3; Ex. 1025, 3; Ex. 1026, 3; Ex. 1027, 7; Ex. 1032 ¶ 75.
`
`Petitioner further argues that such a default value survives after a user exits
`
`the program and returns; otherwise, the default quantity will not be available
`10
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`for the program to use if the user does not specify another value.
`
`Patent Owner argues that Petitioner’s construction is too narrow and
`
`ignores a previous district court determination of the proper construction—
`
`retaining a user’s last-entered quantity for the “plurality of orders to be
`
`placed by the user.” Prelim. Resp. 23–25.
`
`The disputed phrase of claim 1 recites receiving a user input
`
`indicating a default quantity to be used to determine a quantity for each of a
`
`plurality of orders to be placed by the user at one or more price levels.
`
`There is nothing in the claim itself that indicates that the default quantity
`
`must survive after a user exits the program and returns, e.g., after the
`
`quantity is used for each of the plurality of orders to be placed by the user at
`
`one or more price levels. Petitioner has not directed us to a description in
`
`the Specification of the ’056 patent that demonstrates that the “default
`
`quantity” claimed is a “default quantity” in the sense that the quantity
`
`survives after the user exits a program. The claim language itself suggests
`
`that the default only is used for each of the plurality of orders to be placed
`
`by the user at one or more price levels. There would be, then, no expectation
`
`that the quantity would remain after a user exits the program and returns.
`
`Petitioner argues that the term default does not encompass a user’s last-
`
`entered value. Pet. 13. The argument, however, is not persuasive, because
`
`even Petitioner recognizes that a default value can be modifiable by a user.
`
`Id. Moreover, claim 15, which depends from claim 1 recites “adjusting a
`
`size of an order token to indicate the default quantity.” Thus, claim 1
`
`encompasses the user setting the quantity by adjusting the order token. The
`
`quantity is a default in the sense that the same quantity would be used for
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`several orders placed by the user at different prices for a given product.
`
`Accordingly, a default quantity means a user’s last-entered quantity
`
`for the “plurality of orders to be placed by the user.”
`
`receiving a user input indicating a desired price for an order . . . by
`selection of one of a plurality of locations . . . along the price axis
`
`Claim 1 recites the above step. Petitioner argues that this step
`
`encompasses adjusting an order after it has been created, directing attention
`
`to the Specification of the ’056 patent that describes adjusting the size of an
`
`offer or bid. Id. at 16–17; Ex. 1001, 8:31, 10:39–40. Patent Owner does not
`
`dispute Petitioner’s proposed construction.
`
`Petitioner’s proposed construction is the broadest reasonable
`
`construction based on the record before us. Accordingly, the above step
`
`encompasses adjusting an order after it has been created.
`
`the desired price (claims 1 and 4)
`
`Claim 4 depends from claim 3, which depends from claim 1, and
`
`recites “sending the order for the new default quantity at the desired price to
`
`the electronic exchange.” Patent Owner argues that “the desired price” is in
`
`reference to “the desired price” of claim 1 and that claim 4 requires sending
`
`the order at a new default value at the same “desired price” selected
`
`previously in claim 1. Prelim. Resp. 29. Claim 1 recites a desired price and
`
`“the desired price.” Claim 1 also qualifies what is a desired price. In
`
`particular, claim 1 recites that the desired price is specified by user selection
`
`of one of a plurality of locations along the price axis. The desired price
`
`means the price that the user selects to make a bid or offer. Patent Owner
`
`has not shown that a reasonable construction of the claim 1 would limit the
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`claim so that the desired price is the same exact number for every order the
`
`user makes. Such a construction ignores the other language of claim 1—that
`
`the desired price is what is selected by the user for a particular order.
`
`Accordingly, the broadest reasonable interpretation of “the desired price” is
`
`a price that is specified for an order placed by a user.
`
`the default quantity working at the electronic exchange (claim 7)
`
`Claim 7 depends from claim 5 and recites “wherein the order icon
`
`indicates the default quantity working at the electronic exchange.”
`
`Petitioner argues that the “default quantity working at the electronic
`
`exchange” is ambiguous, but that perhaps the phrase is a reference back to
`
`the default quantity recited in claim 1, and if it is, then it means the unfilled
`
`portion of the order placed in claim 1. Pet. 27. Patent Owner argues that the
`
`term is a reference back to the default quantity and that the term “‘default
`
`quantity working at the electronic exchange’” means the unfilled portion of
`
`the order placed in claim 1. Prelim. Resp. 25–26. Based on the record
`
`before us, the default quantity working at the electronic exchange means the
`
`unfilled portion of the order placed in claim 1.
`
`B. 35 U.S.C. § 101 Asserted Ground of Unpatentability
`
`Petitioner contends that claims 1–15 of the ’056 patent are directed to
`
`non-statutory subject matter under 35 U.S.C. § 101. Pet. 18–20. Patent
`
`Owner argues that the Petition is unsupported and fails to provide the proper
`
`analysis necessary for us to institute with respect to the asserted ground of
`
`unpatentability under § 101. Prelim. Resp. 22–23. Upon reviewing the
`
`claims before us, Petitioner’s analysis, and Patent Owner’s arguments, we
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`determine that Petitioner has established that claims 1–15 more likely than
`
`not are directed to non-statutory subject matter under § 101.
`
`Section 101 of Title 35, United States Code, provides: “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 patent therefor, subject to the conditions and requirements of this
`
`title.”
`
`The Supreme Court recognizes three exceptions to these statutory
`
`classes: laws of nature, natural phenomena, and abstract ideas. Alice Corp.
`
`Pty. Ltd. v. CLS Bank Int’l, 134 S.Ct. 2347, 2354 (2014); Mayo
`
`Collaborative Servs. v. Prometheus Labs., Inc., 132 S.Ct. 1289, 1293 (2012).
`
` Although an abstract idea by itself is not patentable, a practical application
`
`of an abstract idea may be deserving of patent protection. Alice, 132 S.Ct. at
`
`2355. We must consider “the elements of each claim both individually and
`
`‘as an ordered combination’ to determine whether the additional elements
`
`‘transform the nature of the claim’ into a patent-eligible application.” Id.
`
`(citing Mayo, 132 S.Ct. at 1298.) The claim must contain elements or a
`
`combination of elements that are “‘sufficient to ensure that the patent in
`
`practice amounts to significantly more than a patent upon the [abstract idea]
`
`itself.’” Id. (citing Mayo, 132 S.Ct. at 1294.)
`
`Claim 1, the sole independent claim, recites in the preamble a method
`
`for displaying transactional information and facilitating trading in a system.
`
`The method steps include receiving bid and offer information of a product
`
`from an electronic exchange, displaying the bid and offer information,
`
`receiving a user input indicating a default quantity and price for an order,
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`and sending the order to the electronic exchange. Petitioner identifies the
`
`abstract idea of claim 1 as graphing bids and offers to help a trader make an
`
`order. Pet. 19. Petitioner argues that the steps of receiving and displaying
`
`market information, accepting a user’s order including a default quantity,
`
`and sending a user’s orders back to an exchange were well-understood,
`
`routine, and conventional activity that adds nothing significant to the
`
`abstract idea.
`
`The Specification of the ’056 patent does not disclose a particular way
`
`for receiving market information, displaying that information, accepting a
`
`user’s order, or sending an order to the exchange, nor does the Specification
`
`provide or disclose any particular algorithms or rules for performing the
`
`recited functions of claim 1. Petitioner has shown that it is more likely than
`
`not that claim 1 is directed to the abstract idea of graphing (or displaying)
`
`bids and offers to assist a trader in making an order, and that the remaining
`
`method steps recite no additional substantive limitations so that the claim
`
`does not cover the full abstract idea of claim 1.
`
`Petitioner argues that dependent claims 2–15 add only well-
`
`understood, routine, conventional post-solution activity to the abstract idea
`
`of claim 1, such as displaying a sent order (claim 5), displaying bids, offers,
`
`and an order with different characteristics (claim 6), and displaying the
`
`quantity of an order (claim 7). We are persuaded that the recited functions
`
`of all of claims 2–15 are directed to insignificant post-solution activities
`
`(e.g., using the data acquired and manipulating that data to generate different
`
`ways to display information) that add nothing to the abstract idea recited in
`
`claim 1.
`
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`Based on the record before us, we determine that Petitioner has
`
`demonstrated that claims 1–15 are more likely than not patent ineligible
`
`under 35 U.S.C. § 101.
`
`C. 35 U.S.C. § 112, ¶ 1 Asserted Ground of Unpatentability
`
`Petitioner contends that claims 1–15 of the ’056 patent lack written
`
`description support under 35 U.S.C. § 112, ¶ 1. Pet. 20–25. In particular,
`
`Petitioner argues that there is no support in the original Specification of the
`
`’056 patent for the term “‘receiving a user input indicating a default quantity
`
`to be used to determine a quantity for each of a plurality of orders to be
`
`placed by the user at one or more price levels.’” Id. at 20. Patent Owner
`
`argues that Petitioner’s proposed construction of the term “default quantity”
`
`is too narrow, and if properly construed, the quoted term does have support
`
`in the original Specification. In support of the argument, Patent Owner
`
`directs our attention to a prior district court decision. Prelim. Resp. 23–25.
`
`Upon reviewing Petitioner’s analysis, and Patent Owner’s arguments, we
`
`determine that Petitioner has not established that claims 1–15 more likely
`
`than not lack written description support under 35 U.S.C. § 112, ¶ 1.
`
`Petitioner argues that the original Specification of the application that
`
`issued as the ’056 patent (“original [S]pecification”) does not provide
`
`written description support for a default quantity. In particular, Petitioner
`
`argues that there is no support for a standard or preset quantity to be used if
`
`the user does not specify another value—a value that must survive after the
`
`user exits the program and returns. Pet. 21–22. As explained above in the
`
`claim construction section, Petitioner’s proposed construction of a default
`
`
`
`16
`
`

`
`CBM2014-00131
`Patent 7,533,056 B2
`
`quantity is too narrow and not based on the broadest reasonable
`
`interpretation of that term. Accordingly, Petitioner’s arguments are not
`
`persuasive because the original Specification need not provide written
`
`description support for the proposed narrow construction.
`
`Petitioner alternatively argues that the claims lack written description
`
`support even if the term means reusing a user’s last-entered quantity. Id. at
`
`24–25. As explained above in the claim construction section, Patent Owner
`
`argues for this construction—reusing a user’s last-entered quantity, and
`
`directs attention to Figure 3A and column 8, lines 28–40 of the Specification
`
`of the ’056 patent as describing “the ability to set a default quantity.”
`
`Prelim. Resp. 9–10. For reasons provided above, we adopt Patent Owner’s
`
`proposed construction. Moreover, the description that Patent Owner directs
`
`us to is as follows:
`
`In a preferred embodiment, the trader submits an order by
`simply selecting either an offer token 324 or bid token 320
`using a pointing device. After being selected, the trader adjusts
`the size of the offer or bid token 324, 320 until the size of the
`token matches the desired quantity of the order. Preferably, a
`pop-up window or other screen indicator is displayed to show
`in numerical terms the quantity of the current size of the token,
`to ease the process of creating a properly sized order token.
`Next, the token is dragged to a location on the screen which
`corresponds to the desired value of the order. Again, a screen
`indicator displays the current value for the token at its current
`location as it is being dragged to allow precise placement of the
`token at the desired value.
`
`
`
`
`17
`
`

`
`CBM2014-00131
`Patent 7,533,056 B2
`
`
`Ex. 1001, 8:28–40.6
`
`We recognize that the above description does not mention the term
`
`default quantity. It is not necessary, however, for an applicant to provide
`
`ipsis verbis support for claim terms. Nor does the written description
`
`requirement require an applicant to describe exactly the subject matter
`
`claimed; instead the description must clearly allow persons of ordinary skill
`
`in the art to recognize that the applicant invented what is claimed. Union Oil
`
`Co. of Cal. v. Atlantic Richfield Co., 208 F.3d 989, 997 (Fed. Cir. 2000).
`
`The above description from the Specification of the ’056 patent,
`
`which is described identically in the original Specification, describes a user-
`
`inserted quantity. Petitioner has not shown that a person of ordinary skill in
`
`the art at the time of the invention would have understood that the user-
`
`inserted quantity goes away upon a one-time usage, or resets to zero, or to
`
`any other random number. There is nothing in the original Specification to
`
`suggest that the quantity entered by the user inexplicably changes on its
`
`own. Rather, the more reasonable understanding from the perspective of a
`
`person of ordinary skill in the art is that the user’s last entered quantity
`
`would not change and, for example, could be used for subsequent orders for
`
`the same product, at the same quantity, but at different prices. For all of
`
`these reasons, Petitioner has not shown that it is more likely than not that the
`
`claims lack written description support.
`
`
`6 The description in the original Specification is the same. Ex. 1002, 16:7–
`16.
`
`
`
`18
`
`

`
`CBM2014-00131
`Patent 7,533,056 B2
`
`
`D. 35 U.S.C. § 112, ¶ 2 Asserted Ground of Unpatentability
`
`Petitioner argues that claim 7, which indirectly depends from claim 1,
`
`fails to particularly point out and distinctly claim the subject matter regarded
`
`as the invention under 35 U.S.C. § 112, ¶ 2. Pet. 25. Claim 7 depends from
`
`dependent claim 5 and recites “wherein the order icon indicates the default
`
`quantity working at the electronic exchange.” Petitioner argues that the term
`
`“default quantity working” is ambiguous, but then goes on to explain that if
`
`the “default quantity” is in reference to the default quantity recited in claim
`
`1, then the term the default quantity working at the electronic exchange
`
`means the unfilled portion of the order that was placed in claim 1. Id. at 27.
`
`
`
` A patent must “conclude with one or more claims particularly
`
`pointing out and distinctly claiming the subject matter which the applicant
`
`regards as [the] invention.” 35 U.S.C. § 112, ¶ 2 (2006). Based on the
`
`record before us, Petitioner has not shown that claim 7 does not particularly
`
`point out and distinctly claim the subject matter which Patent Owner regards
`
`as the invention. Based on the construction provided above for the claim,
`
`the claim does inform a person of ordinary skill in the art the scope of claim
`
`7. Petitioner’s arguments are based on a construction of the claim that is
`
`unreasonable, and, therefore, Petitioner’s arguments are not persuasive.
`
`E. Obviousness of Claims 1–15 over TSE, Togher, and Schott
`
`Petitioner contends that claims 1–15 are unpatentable under 35 U.S.C.
`
`§ 103 over TSE, Togher, and Schott. Patent Owner argues that all of the
`
`proposed grounds based on obviousness are deficient because Petitioner fails
`
`
`
`19
`
`

`
`CBM2014-00131
`Patent 7,533,056 B2
`
`to articulate where each element of the claims is found in the cited art and
`
`the required obviousness analysis. Prelim. Resp. 28.
`
`TSE is a guide for operating a trading terminal of the Tokyo Stock
`
`Exchange. Ex. 1004, 1.7 TSE describes a trading system that facilitates
`
`tra

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