`571.272.7822
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` Paper No. 19
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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.
`____________
`
`Case CBM2014-00133
`Patent No. 7,676,411 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`PHILIP J. HOFFMANN, Administrative Patent Judges.
`
`HOFFMANN, Administrative Patent Judge.
`
`
`
`DECISION
`Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`
`
`I. INTRODUCTION
`
`A. Background
`
`TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
`
`Ameritrade Online Holdings Corp. (collectively, “Petitioner”) filed a
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`Petition (Paper 1, “Pet.”) on May 19, 2014, which requests review under the
`
`IBG 1029
`CBM of U.S. Patent No. 7,676,411
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`CBM2014-00133
`Patent 7,676,411 B2
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`transitional program for covered business method patents of U.S. Patent No.
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`7,676,411 B2 (Ex. 1001, “the ’411 patent”). Trading Technologies
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`International, Inc. (“Patent Owner”) filed a Preliminary Response (Paper 18,
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`“Prelim. Resp.”) on September 3, 2014. We have jurisdiction under
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`35 U.S.C. § 324, which provides that review may not be instituted “unless
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`. . . the information presented in the petition . . . would demonstrate that it is
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`more likely than not that at least 1 of the claims challenged in the petition is
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`unpatentable.”
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`Petitioner challenges the patentability of claims 1–28 (“the challenged
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`claims”) of the ’411 patent under 35 U.S.C. §§ 101 and 103. We determine
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`that the Petition demonstrates it is more likely than not that the challenged
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`claims are unpatentable under 35 U.S.C. § 101, and, therefore, we institute a
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`covered business method patent review of claims 1–28 of the ’411 patent.
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`
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`B. Related Matters
`
`Petitioner and Patent Owner identify numerous related U.S. District
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`Court cases. See Pet. 2; see also Paper 7, 2–5.
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`Patent Owner also states that related U.S. Patent No. 6,772,132 is the
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`subject of TD Ameritrade Holding Corp. v. Trading Technologies
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`International, Inc., Case CBM2014-00135 (PTAB); that related U.S. Patent
`
`No. 6,766,304 is the subject of TD Ameritrade Holding Corp. v. Trading
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`Technologies International, Inc., Case CBM2014-00136 (PTAB); and that
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`related U.S. Patent No. 7,685,055 is the subject of TD Ameritrade Holding
`
`Corp. v. Trading Technologies International, Inc., Case CBM2014-00137
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`(PTAB). Paper 7, 5. Patent Owner further states that related U.S. Patent
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`No. 6,766,304 was the subject of Reexamination, Control No. 90/008,577,
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`2
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`CBM2014-00133
`Patent 7,676,411 B2
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`and that related U.S. Patent No. 6,772,132 was the subject of
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`Reexamination, Control No. 90/008,576 and of Reexamination, Control No.
`
`90/011,250. Id.
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`
`
`C. The ’411 Patent (Ex. 1001)
`
`
`
`The ’411 patent is titled “Click Based Trading with Intuitive Grid
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`Display of Market Depth,” and issued March 9, 2010, from Application No.
`
`11/585,907, filed October 25, 2006. Ex. 1001, 1. Application No.
`
`11/585,907 claims priority to (as a continuation of) Application No.
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`11/415,163, filed May 2, 2006, which claims priority to (as a continuation
`
`of) Application No. 10/237,131, filed September 9, 2002, which claims
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`priority to (as a continuation of) Application No. 09/590,692, filed June 9,
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`2000, which issued as related U.S. Patent No. 6,772,132. Id.
`
`
`
`The ’411 patent discloses a “Mercury” display and method of using
`
`the Mercury display to trade a commodity. Id. at Abstract; col. 3, ll. 9–10.
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`The Mercury display is a graphic user interface (“GUI”) that dynamically
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`displays the market depth of a commodity traded in a market and allows a
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`trader to place an order in an efficient manner. See id. at col. 3, ll. 11–28.
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`The Mercury display is depicted in Figure 3 of the ’411 patent, which
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`is reproduced below.
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`Fig. 3 depicts the Mercury display of the ’411 patent
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`
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`The Mercury display includes a plurality of columns. Column 1005 is
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`a static price axis, which includes a plurality of price values for the
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`commodity. See id. at col. 7, ll. 55–66. Columns 1003 and 1004 are aligned
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`with the static price axis and dynamically display bid and ask quantities,
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`respectively, for the corresponding price values of the static price axis. See
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`id. at col. 7, l. 54–col. 8, l. 16. Column 1002 contains various parameters
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`and information used to execute trades, such as the default quantity listed in
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`cell 1016. See id. at col. 8, l. 35–col. 9, l. 3.
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`
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`A trader executes trades using the Mercury display by first setting the
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`desired commodity and default parameters, such as default quantity. See id.
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`at col. 9, ll. 36–50; Fig. 6, step 1302. Then, a trader can send a buy order or
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`sell order to the market with a single action, such as clicking on the
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`4
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`appropriate cell in column 1003 or 1004. See id. at col. 9, l. 36–col. 10,
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`l. 22; Fig. 6, steps 1306–1315.
`
`
`
`Claim 1 of the ’411 patent is illustrative of the challenged claims and
`
`is reproduced below:
`
`1. A method of displaying market information relating to and
`facilitating trading of a commodity being traded on an
`electronic exchange, the method comprising:
`
`receiving, by a computing device, market information for a
`commodity from an electronic exchange, the market
`information comprising an inside market with a current highest
`bid price and a current lowest ask price;
`
`displaying, via the computing device, a bid display region
`comprising a plurality of graphical locations, each graphical
`location in the bid display region corresponding to a different
`price level of a plurality of price levels along a price axis;
`
`displaying, via the computing device, an ask display region
`comprising a plurality of graphical locations, each graphical
`location in the ask display region corresponding to a different
`price level of the plurality of price levels along the price axis;
`
`dynamically displaying, via the computing device, a first
`indicator representing quantity associated with at least one trade
`order to buy the commodity at the current highest bid price in a
`first graphical location of the plurality of graphical locations in
`the bid display region, the first graphical location in the bid
`display region corresponding to a price level associated with the
`current highest bid price;
`
`upon receipt of market information comprising a new highest
`bid price, moving the first indicator relative to the price axis to
`a second graphical location of the plurality of graphical
`locations in the bid display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new highest bid price, wherein the
`second graphical location is different from the first graphical
`location in the bid display region;
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`5
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`dynamically displaying, via the computing device, a second
`indicator representing quantity associated with at least one trade
`order to sell the commodity at the current lowest ask price in a
`first graphical location of the plurality of graphical locations in
`the ask display region, the first graphical location in the ask
`display region corresponding to a price level associated with the
`current lowest ask price;
`
`upon receipt of market information comprising a new lowest
`ask price, moving the second indicator relative to the price axis
`to a second graphical location of the plurality of graphical
`locations in the ask display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new lowest ask price, wherein the
`second graphical location is different from the first graphical
`location in the ask display region;
`
`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade orders,
`each graphical area corresponding to a different price level
`along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and send the trade order having a
`default quantity to the electronic exchange.
`
`
`
`
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`D. Alleged Grounds of Unpatentability
`
`Petitioner sets forth grounds of unpatentability of the challenged
`
`claims as follows:
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`Ground Prior Art
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`Challenged Claim(s)
`
`§ 101
`
`n/a
`
`1–28
`
`§ 103
`
`Silverman,1 Gutterman,2 and
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`1–10 and 12–28
`
`Togher3
`
`§ 103
`
`Silverman, Gutterman,
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`11
`
`Togher, and Paal4
`
`§ 103
`
`TSE5 and Togher
`
`1–28
`
`
`
`
`
`II. ANALYSIS
`
`A. Requirements for Covered Business Method Patent Review
`
`Section 18 of the AIA6 provides for the creation of a transitional
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`program for reviewing covered business method patents. Section 18 limits
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`review to persons or their privies who have been sued or charged with
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`infringement of a “covered business method patent,” which does not include
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`patents for “technological inventions.” AIA §§ 18(a)(1)(B), 18(d)(1); see
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`37 C.F.R. § 42.302. Petitioner and Patent Owner indicate that the Petitioner
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`was sued for infringement of the ’411 patent. Pet. 3; Paper 7, 2. For reasons
`
`
`1 Silverman et al., U.S. Patent No. 5,077,665 (issued Dec. 31, 1991) (Ex.
`1003).
`2 Gutterman et al., U.S. Patent No. 5,297,031 (issued Mar. 22, 1994) (Ex.
`1004).
`3 Togher et al., U.S. Patent No. 5,375,055 (issued Dec. 20, 1994) (Ex. 1005).
`4 Paal et al., U.S. Patent No. 5,263,134 (issued Nov. 16, 1993) (Ex. 1018).
`5 TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1007). We note that this is an English translation of Ex. 1006, which is in
`Japanese. See Ex. 1008.
`6 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
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`discussed below, we find that the ’411 patent is eligible for covered business
`
`method patent review because at least one claim “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” (see 37 C.F.R. § 42.301(a)), and because the claimed subject matter
`
`as a whole either does not 1) recite a technological feature that is novel and
`
`unobvious over the prior art or 2) solve a technical problem using a
`
`technological solution (see 37 C.F.R. § 42.301(b)).
`
`i. Covered Business Method Patent under 37 C.F.R. § 42.301(a)
`
`Petitioner argues that the claims require a method for performing data
`
`processing in the practice, administration or management of a financial
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`product or service. Pet. 4 (citing 37 C.F.R. § 42.301(a)). Petitioner argues
`
`that claims 1 and 26 recite such a method because they require a GUI that
`
`displays information, such as bids and asks, for a market, and creates and
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`sends trade orders to an electronic exchange. See id.
`
`Patent Owner disputes that the ’411 patent is directed to a method for
`
`performing data processing in the practice, administration or management of
`
`a financial product or service (see Prelim. Resp. 2–3) because the claims of
`
`the ’411 patent are directed to “purely technological” tools (id. at 3). Patent
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`Owner argues that, although used in the field of trading, the ’411 patent is
`
`not a covered business method patent because the inventive aspects of the
`
`claims arise from structural and functional features embodied in a GUI tool
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`(see id. at 34–35), and “not in any business method or practice” (id. at 34).
`
`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.”
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`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.’” 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. Id. A patent
`
`need have only one claim directed to a covered business method to be
`
`eligible for review. Id. at 48,736 (Response to Comment 8).
`
`
`
`Upon review of the record, and taking into account Patent Owner’s
`
`argument, we determine that the ’411 patent is directed to a method for
`
`performing data processing or other operations used in the practice,
`
`administration, or management of a financial product or service. Claim 1
`
`recites “[a] method of displaying market information relating to and
`
`facilitating trading of a commodity being traded on an electronic exchange.”
`
`The claim recites steps of displaying market information, including
`
`indicators of asks and bids in the market, and recites steps of setting trade
`
`order parameters and sending a trade order to an electronic exchange.
`
`Displaying market information and sending a trade order to an electronic
`
`exchange are activities that are financial in nature. Given this, we determine
`
`that at least claim 1 of the ’411 patent claims a method for performing
`
`operations used in the practice, administration, or management of a financial
`
`product or service (i.e., trading on an electronic exchange) and, therefore, we
`
`determine that the ’411 patent is a covered business method patent in
`
`accordance with 37 C.F.R. § 42.301(a).
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`ii. Not a Technological Invention under 37 C.F.R. § 42.301(b)
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`As indicated above, even if a patent includes claims that would
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`otherwise be eligible for treatment as a covered business method, review of
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`the patent is precluded if the claims cover only “technological invention[s],”
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`as defined by 37 C.F.R. § 42.301(b). Petitioner further argues that the ’411
`
`patent is a covered business method patent because the claims do not recite a
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`technical feature that is novel and unobvious over the prior art and do not
`
`solve a technical problem with a technical solution. See Pet. 5–7. First,
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`Petitioner argues that the claims do not recite a technical feature because
`
`they only recite software and general computer components, such as a
`
`display and input devices. Pet. 5. Second, Petitioner argues that the claims
`
`do not solve a technical problem using a technical solution because the
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`claims are directed to the known problem of placing a trade order for a
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`commodity on an electronic exchange. Pet. 6–7.
`
`Conversely, Patent Owner argues that the ’411 patent is for a
`
`technological invention and, therefore, is not a covered business method
`
`patent. See Prelim. Resp. 46–57. First, Patent Owner argues that the claims
`
`recite a technical feature because they combine structural and functional
`
`features of the claimed GUI tool in a novel and non-obvious way. See id. at
`
`55–57. Second, Patent Owner argues that the claims solve the technical
`
`problem of submitting orders to the exchange with speed and accuracy with
`
`the technical solution of the combined structural and functional features of
`
`the claimed GUI tool. See id. at 47–55.
`
`
`
`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
`
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`10
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`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. 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.
`
`77 Fed. Reg. 48,756, 48,763–64 (Aug. 14, 2012).
`
`On this record, and taking into account Patent Owner’s argument, we
`
`are persuaded by Petitioner that the ’411 patent does not solve a technical
`
`problem with a technical solution. The ’411 patent solves the problem of a
`
`trader having to read a display of prices for a commodity and enter a trade
`
`order before the price for the commodity changes. See Ex. 1001, col. 2,
`
`l. 29–col. 3, l. 8. The ’411 patent solves this problem, as stated in claim 1,
`
`by displaying market information in a certain arrangement on a GUI and, via
`
`a single action of a user input device on a particular location in the GUI,
`
`setting order parameters and sending the order to the exchange. As written,
`
`claim 1 requires the use of a display, an input device, and a GUI (i.e.,
`
`software), which all were known technology. Given this, we determine that
`
`at least claim 1 does not solve a technical problem using a technical solution,
`
`and, thus, at least claim 1 does not satisfy the second prong of 37 C.F.R.
`
`§ 42.301(b). Accordingly, we find that regardless of whether the ’411 patent
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`does or does not recite novel and unobvious technical features, the ’411
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`patent is eligible for covered business method patent review.
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`Notwithstanding our determination above, on this record, we also are
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`persuaded by Petitioner that the ’411 patent does not solve a technical
`
`problem with a technical solution. As stated above, the ’411 patent solves
`
`the problem of trader having to read a display of prices for a commodity and
`
`enter a trade order before the price for the commodity changes. See Ex.
`
`1001, col. 2, ll. 18–42. The ’411 patent solves this problem by displaying
`
`market information in a certain arrangement on a GUI and, via a single
`
`action of a user input device on a particular location in the GUI, setting order
`
`parameters and sending the order to the exchange. As discussed above,
`
`claim 1’s use of a display, an input device, and a GUI (i.e., software) were
`
`all known technology. Given this, we determine that at least claim 1 does
`
`not solve a technical problem using a technical solution and at least claim 1
`
`does not satisfy the second prong. Accordingly, we find that the ’411 patent
`
`is eligible for covered business method patent review.
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`
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`B. Claim Construction
`
`Consistent with the statute and legislative history of the AIA, we
`
`interpret claims using the broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.300(b). An
`
`inventor, however, may rebut that presumption by providing a definition of
`
`the term in the specification with reasonable clarity, deliberateness, and
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`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
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`“single action”
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`Petitioner argues, and Patent Owner does not dispute, that “single
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`action” is defined in the ’411 patent. Pet. 10 (citing Ex. 1001, col. 4, ll. 18–
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`22). Upon review, we determine that the ’411 patent defines “single action”
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`to mean “any action by a user within a short period of time, whether
`
`comprising one or more clicks of a mouse button or other input device, . . .
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`for the purposes of the present invention.” Ex. 1001, col. 4, ll. 18–22.
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`
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`C. Ground Under 35 U.S.C. § 101
`
`Petitioner argues that claims 1–28 are patent ineligible under
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`35 U.S.C. § 101 because they encompass an abstract idea. See Pet. 11–15.
`
`Patent Owner argues that Petitioner fails to demonstrate that the claims are
`
`patent ineligible (see Prelim. Response 64), because the Petition simply
`
`recites case law without any proper analysis as to why the “claims preempt
`
`the idea of placing an order based on observed market information” (id.).
`
`We are persuaded by Petitioner that claims 1–28 are more likely than
`
`not patent ineligible, inasmuch as the Petition provides sufficient analysis as
`
`to why the claims merely recite an abstract idea without significantly more.
`
`Patent-eligible subject matter is defined in § 101 of the Patent Act, 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 patent
`therefor, subject to the conditions and requirements of this title.
`
`
`
`There are, however, three judicially created exceptions to the broad
`
`categories of patent-eligible subject matter in § 101: laws of nature, natural
`
`phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134
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`S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
`
`Inc., 132 S. Ct. 1289, 1293 (2012). Although an abstract idea, itself, is
`
`patent-ineligible, an application of the abstract idea may be patent-eligible.
`
`Alice, 134 S. Ct. at 2355. Thus, 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
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`patent-eligible application.” Id. (citing Mayo, 132 S. Ct. at 1297–1298).
`
`The claim must contain elements or a combination of elements that are
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`“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
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`1294).
`
`In this case, Petitioner argues that the claims 1–28 are patent ineligible
`
`because they recite just the abstract idea of “placing an order based on
`
`observed market information” along with well-known and insignificant
`
`extra-solution activity. Pet. 11–15. Patent Owner argues, generally, that
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`Petitioner’s argument is unsupported and, therefore, cannot be a basis for
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`instituting review. Prelim. Resp. 64.
`
`Independent claim 1 recites a method which falls, nominally, into the
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`process category of patent-eligible subject matter recited in § 101.
`
`Specifically, claim 1 recites a method that requires the display of certain
`
`information in a certain arrangement on a GUI and allows for the placing of
`
`an order based on the information. On this record, we are persuaded by
`
`Petitioner that claim 1 is directed to the abstract idea of placing an order
`
`based on observed market information, as well as updating the market
`
`information.
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`The method of claim 1 requires a display, an input device, and a GUI
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`(i.e., software) for performing the recited steps of receiving market
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`information; displaying the information as indicators in bid and ask regions
`
`along a price axis; updating the market information in response to changes in
`
`the market; and placing an order by clicking on some portion of the
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`information. Each of these steps individually or in combination, requires
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`nothing more than a conventional, generic computer.
`
`The ’411 patent discloses that its system can be implemented “on any
`
`existing or future terminal or device” (Ex. 1001, col. 4, ll. 8–11), each of
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`which is known to include a display, and discloses that the input device can
`
`be a mouse (id. at col. 4, ll. 12–15), which is a known input device. The
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`’411 patent further discloses that “[t]he scope of the present invention is not
`
`limited by the type of terminal or device used” (id. at col. 4, ll. 11–12). Still
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`further, the ’411 patent discloses that the physical mapping of information
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`sent by the exchange to a screen grid (i.e., the GUI) “can be done by any
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`technique known to those skilled in the art” and that “[t]he present invention
`
`is not limited by the method used to map the data to the screen display” (id.
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`at col. 5, ll. 1–5).
`
`Thus, claim 1 does no more than simply instruct the practitioner to
`
`implement the abstract idea on a GUI. To be patent-eligible, a claim cannot
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`simply state the abstract idea and add the words “apply it.” Mayo, 132 S. Ct.
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`at 1294. On this record, we agree with Petitioner that claim 1 does not recite
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`additional elements or combinations of elements that add significantly more
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`to the abstract idea so as to claim patent-eligible subject matter.
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`Independent claim 26 recites a computer readable medium having
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`computer-readable instruction that, when executed, causes the computer to
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`perform the method of claim 1. Further, none of dependent claims 2–25, 27,
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`or 28 appears to recite additional elements or combinations of elements that
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`add significantly more to the abstract idea so as to claim patent-eligible
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`subject matter.
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`Accordingly, on this record, we determine that Petitioner has
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`demonstrated that claims 1–28 are more likely than not patent ineligible
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`under 35 U.S.C. § 101.
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`
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`D. Grounds Under 35 U.S.C. § 103
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`As stated by the Supreme Court:
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`Section 103(a) forbids issuance of a patent when “the
`differences between the subject matter sought to be patented
`and the prior art are such that the subject matter as a whole
`would have been obvious at the time the invention was made to
`a person having ordinary skill in the art to which said subject
`matter pertains.”
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`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
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`obviousness is resolved on the basis of underlying factual determinations,
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`including: (1) the scope and content of the prior art, (2) any differences
`
`between the claimed subject matter and the prior art, and (3) the level of skill
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`in the art. Graham v. John Deere Co., 383 U.S. 1, 17 (1966); see KSR, 550
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`U.S. at 407 (“While the sequence of these questions might be reordered in
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`any particular case, the [Graham] factors continue to define the inquiry that
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`controls.”).
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`i. Obviousness of Claims 1–28 based on Gutterman
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`Petitioner argues that claims 1–28 are unpatentable under 35 U.S.C.
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`§ 103(a) based on Silverman in combination with Gutterman and Togher,
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`with or without Paal. See Pet. 15–57. Independent claim 1 requires:
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`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade
`orders, each graphical area corresponding to a different price
`level along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and [to] send the trade order having a
`default quantity to the electronic exchange.
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`Independent claim 26 requires similar limitations.
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`Petitioner relies upon Gutterman’s disclosure of a trader selecting an
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`order icon, which causes the system to populate an electronic message with
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`the trade information, and, then, selecting a “SEND FILL” button to transmit
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`the message, to meet the claim limitation of selecting a particular area
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`through a single action to set parameters and to send the trade order. Pet.
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`19–20 (citing Ex. 1004, col. 13, ll. 29–43; Ex. 1019 ¶ 77, “Roman Decl.”).
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`Patent Owner argues that the disclosures of Gutterman on which
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`Petitioner relies do not meet the “single action” limitation because selecting
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`an order icon in the deck pane and then selecting a send button in the fill
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`pane is not a selection of a particular location of the order entry region by a
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`single action, but is instead a selection of two different locations by two
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`different actions. See Prelim. Resp. 58–59, 62–64.
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`Gutterman discloses a broker workstation for managing orders in a
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`market. Ex. 1004, Abstract. Gutterman’s Figure 2d is reproduced below.
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`Fig. 2d depicts a screen of the broker workstation
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`
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`Figure 2d depicts a broker’s workstation screen that includes a deck
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`pane 135, which displays a buy side and a sell side divided by column 136.
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`Id. at col. 12, ll. 1–6. Deck pane 135 also includes touch-sensitive order
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`icons 139, such as buy order icon 139-1 and sell order icon 139-9. Id. at col.
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`12, ll. 25–44. Figure 2d further depicts fill pane 140. Gutterman states:
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`[T]he broker selects the order by touching the corresponding
`order icon in the deck pane 135. When the order is selected, the
`icon is highlighted, and the order’s quantity, price and time
`stamp appear in so-designated areas of the fill pane 140 which
`“pops up” into the lower left portion of the screen 12 by the
`operation of Fill Pane object 454. The broker enters the
`identification code of his counterpart broker and firm by means
`of the keyboard 14 or other suitable data entry device and
`presses the SEND FILL “button” on the screen 12. The
`workstation 10 then communicates the filled order information
`to the customer and clearing house via the electronic order entry
`system.
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`Id. at col. 13, ll. 27–40.
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`Given the above, and taking into account Petitioner’s argument, we
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`are persuaded by Patent Owner that Gutterman does not meet the “single
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`action” limitation. Gutterman does not send the order in response to the
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`selection of the order icon in deck pane 135 (i.e., the claimed particular
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`location of the order entry region). Instead, the order is sent to the fill pane
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`140 and then when the “SEND FILL” button is selected, the order is
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`transmitted. Id. Thus, instead of teaching selecting a particular graphical
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`area in the order entry region through a “single action” that both sets a price
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`for a trade order and transmits the trade order, Gutterman describes two
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`actions that occur in two different graphical areas. We note that Petitioner
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`does not rely upon Silverman to meet the “single action” limitation. See Pet.
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`19 (explaining that Silverman does not provide any details on order entry,
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`other than through conventional data entry tools).
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`Accordingly, we determine that Petitioner fails to establish that it is
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`more likely than not that independent claims 1 and 26, as well as claims 2–
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`25, 27, and 28, dependent thereon, would have been obvious based on
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`Gutterman.
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`ii. Obviousness of Claims 1–28 based on TSE
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`
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`Petitioner argues that claims 1–28 are unpatentable under 35 U.S.C.
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`§ 103(a) based on TSE in combination with Togher. See Pet. 57–79. Again,
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`the issue of obviousness relates to the requirements in independent claim 1
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`of:
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`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade
`orders, each graphical area corresponding to a different price
`level along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and [to] send the trade order having a
`default quantity to the electronic exchange.
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`Independent claim 26 requires similar limitations. Petitioner argues that the
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`limitation of selecting a particular area through a single action that sets
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`parameters and sends the trade order is met by TSE’s description of placing
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`an order by, first, double-clicking a specific area on the Board/Quotation
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`Screen to open a new order entry window, and then selecting a send button
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`on the new order entry window. See Pet. 69–70 (citing Ex. 1007, 137;
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`Roman Decl. ¶ 173).
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`Patent Owner argues that the above relied-upon description of TSE
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`does not meet the “single action” limitation. Specifically, Patent Owner
`
`argues that double-clicking the area of the Board/Quotation Screen and
`
`clicking a send button on the new order entry window is not a selection of a
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`particular location of th