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`Paper No. ____
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` Filed: January 30, 2017
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`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.
`
`Petitioner
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`_________________
`Case CBM2015-00181
`U.S. Patent 7,676,411
`_________________
`
`PATENT OWNER’S RESPONSE
`TO ORDER DATED JANUARY 23, 2017
`
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`
`
`Case CBM2015-00181
`U.S. Patent 7,676,411
`I. What effect does the Federal Circuit’s decision in Trading Techs. Int’l,
`Inc., v. CQG, Inc., No. 16-1616, 2017 WL 192716 (Fed. Cir. Jan. 18,
`2017) (“CQG”) have on these proceedings?
`A. CQG’s patent eligibility findings for the ’304 and ’132 patents
`resolve the § 101 grounds in CBM2015-00161 and -00182.
`CQG reviewed the legal issue of § 101 de novo, as the Federal Circuit would
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`in an appeal from the Board, and found the same claims challenged in these CBMs
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`patent eligible under either step of Alice. Id. at *3-4. CQG fully analyzed the
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`claims by discussing the technological problem and solution involved, id. at *1, 3-
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`4, and explaining how the district court’s opinion was “in accord with precedent,”
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`id. at *3. The Court’s holding that “the subject matter claimed in the ’132 and ’304
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`patents is patent-eligible,” id. at *4, resolves the § 101 grounds in these CBMs.
`
`CQG’s non-precedential designation means it “does not add significantly to
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`the body of law,” Fed. Cir. R. 32.1(b), but it is a Federal Circuit decision
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`demonstrating how to apply the Alice framework to these claims. CQG, 2017 WL
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`192716 at *3-4. CQG affirmed that the district court’s conclusion was proper under
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`the same precedent that controls here. Also, because the CBM petitions mirror the
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`arguments in CQG, compare, e.g., Ex. 2412, 20-23, Ex. 2413 with 00161, paper 2
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`and 00182, paper 7, the law should not apply differently here.
`
`In re Baxter would not apply to support a different legal conclusion on § 101
`
`by the Board here. 678 F.3d 1357 (Fed. Cir. 2012). In Baxter, the prior Federal
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`Circuit decision affirming non-obviousness did not find the claims “valid” under
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`
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`1
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`§ 103. Id. at 1364. Instead, it found that the challenger did not meet its burden in
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`district court. Id. Baxter thus permitted a different outcome at the PTO because the
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`underlying factual findings were subject to different burdens of proof. Id. Here, it
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`the does not matter whether the burden of proof is “clear and convincing” or
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`“preponderance of the evidence” because the Federal Court ruled that “under either
`
`standard the legal requirements for patentability are satisfied” by these claims.
`
`CQG, 2017 WL 192716 at *2, FN2.
`
`CQG supports finding the related CBMs’ claims patent eligible.
`B.
`CQG is the most relevant authority because it applied the Alice framework
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`to GUI claims like those in TT’s related patents. 2017 WL 192716 at *3. CQG
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`affirms that GUI inventions that “impart[] a specific functionality to a trading
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`system ‘directed to a specific implementation of a solution to a problem in the
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`software arts’” are patent eligible under § 101. Id. at *4 (quoting Enfish, LLC v.
`
`Microsoft Corp., 822 F.3d 1327, 1339 (Fed. Cir. 2016)).
`
`The ’411 claims are patent eligible because, while different in scope, for
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`purposes of patent eligibility they are indistinguishable from the ’132 and ’304
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`claims. Indeed, the ’411 claims recite a combination of features─a dynamic display
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`of bid and ask indicators that move relative to a price axis with single-action order
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`entry─that address the same problem with prior GUIs (e.g., missing your price) as
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`2
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`
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`the claims in the ’132 and ’304 patents. Compare id. at *1-4 with CBM2015-
`
`00181, Paper 76, Sec. I.
`
`The ’056 claims are patent eligible because they “do not simply claim
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`displaying information on a [GUI].” See CQG, 2017 WL 192716, at *3. Instead,
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`the ’056 claims “require a specific, structured [GUI] paired with a prescribed
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`functionality directly related to the [GUI]’s structure that is addressed to and
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`resolves a specifically identified problem in the prior state of the art.” See id. In
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`particular, the ’056 invention improves prior trading interfaces by providing
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`market information in an intuitive format that allows traders to enter orders quickly
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`by selecting locations on the axis using a default quantity. See, CBM2015-00179,
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`Ex.1001, 1:15-17; 2:44-66; 8:28-40; Fig. 3A. Under Alice step two, the combined
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`claim elements provide an inventive concept: “specific structure and concordant
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`functionality of the [GUI],” e.g., displaying bid and offer indicators relative to a
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`price axis, setting a default quantity, and locations along the price axis, selected to
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`set a desired price for an order. See CQG, 2017 WL 192716, at *3.
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`The ’556 claims are patent eligible because they “do not simply claim
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`displaying information on a [GUI].” See id. Like the ’132 and ’304 patents, the
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`’556 patent distinguishes its claimed GUI features from prior art GUIs, e.g., the
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`’132 patent GUI. CBM2015-00172, Ex. 1001, 3:12-16. Under Alice step two, the
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`combined claim elements provide an inventive concept, and require “specific
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`3
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`structure and concordant functionality of the [GUI],” e.g., a new, particular value
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`axis and display and movement of indicators along that value axis. See id.
`
`C. CQG’s analysis of the inventions confirms that these patents are
`technological and should be excluded from CBM review.
`The Federal Circuit’s analysis in CQG demonstrates how these GUI
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`inventions are technological, so they should be excluded from CBM review. AIA
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`§ 18. Consequently, the Board should terminate the proceedings and vacate its
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`institution decisions, as it has done in the past. See, e.g., Global Tel*Link Corp. v.
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`Securus Technologies Inc., CBM2015-00145, Paper 49 (Nov. 15, 2016).
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`While CQG was in the § 101 context, the nature of the patented invention
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`should be the same for CBM jurisdiction purposes. Indeed, the Federal Circuit has
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`looked to § 101 cases to determine the nature of an invention for CBM purposes.
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`See, e.g., Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1327 (Fed. Cir.
`
`2015).
`
`At least four findings in CQG signal that claims like those in the ’304 and
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`’132 patents cover technological inventions. First, “the challenged patents ‘solve
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`problems of prior [GUI] devices . . . in the context of computerized trading[]
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`relating to speed, accuracy and usability.’” CQG, 2017 WL 192716, at *2-3.
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`Second, the claims recite “specific technologic modifications to solve a problem or
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`improve the functioning of a known system.” Id. at *3. Third, the invention is “not
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`simply the generalized use of a computer as a tool to conduct a known or obvious
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`
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`4
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`
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`Case CBM2015-00181
`U.S. Patent 7,676,411
`process, but instead is an improvement to the capability of the system as a whole.”
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`Id. Fourth, the claims are “directed to a specific improvement to the way
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`computers operate” because the claimed GUI invention “imparts a specific
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`functionality to a trading system ‘directed to a specific implementation of a
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`solution to a problem in the software arts.’” Id. at *4. CQG confirms the
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`technological nature of the ’132 and ’304 patents, so the Board should have “no
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`power to determine the unpatentability of the challenged claims” and should vacate
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`institution and terminate the proceedings. See Securus, Paper 49 at 2. The related
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`patents likewise recite technological GUI inventions, so the Board should vacate
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`and terminate those CBMs as well. Supra at B.
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`II. Are the parties contemplating any settlement negotiations regarding
`these proceedings and, if so, what is the status of the negotiations?
`
`While TT is open to settlement discussions, none are ongoing at this time.
`
`III. What is the status of any other proceedings in the courts involving the
`patents listed in the caption or involving the patents that are the subject
`of the related covered business method patent reviews?
`CQG remains pending at the Federal Circuit. All other related cases, except
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`those involving Petitioners (1:10-cv-00721, 1:10-cv-00884, consolidated as 1:10-
`
`cv-00715 (N.D. Ill.); and 16-cv-60296 (S.D. Fl.)), have concluded. Petitioners’
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`cases are stayed for these CBMs. See Exs. 2414-2416.
`
`Dated: January 30, 2017
`
`Respectfully submitted,
`
`By: /Erika H. Arner/
`Erika H. Arner, Reg. No. 57,540
`
`
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`5
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`CERTIFICATE OF SERVICE
`
`Case CBM2015-00181
`U.S. Patent 7,676,411
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Response to Order Dated January 23, 2017 was served on January 30,
`
`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 Bemben
`rbemben-PTAB@skgf.com
`
`John C. Phillips
`cbm41919-0008CP1@fr.com
`
`PTAB@skgf.com
`
`
`
`Date: January 30, 2017
`
`
`
`/Valencia Daniel/
`Valencia Daniel
`Litigation Legal Assistant
`
`Finnegan, Henderson, Farabow, Garrett &
`Dunner, LLP
`
`
`
`
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