trials@uspto.gov
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`571-272-7822
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`CBM2015-00161, Paper No. 134
`CBM2015-00181, Paper No. 142
`CBM2015-00182, Paper No. 133
`March 24, 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.
`____________
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`____________
`
`Held: October 19, 2016
`____________
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`October 19, 2016, commencing at 1:30 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`CBM2015-00161, Paper No. 134
`CBM2015-00181, Paper No. 142
`CBM2015-00182, Paper No. 133
`March 24, 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.
`____________
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`____________
`
`Held: October 19, 2016
`____________
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`The above-entitled matter came on for hearing on Wednesday,
`October 19, 2016, commencing at 1:30 p.m., at the U.S. Patent
`and Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
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`
`
`ADAM J. KESSEL, ESQ.
`Fish & Richardson P.C.
`One Marina Park Drive
`Boston, Massachusetts 02210-1878
`
`
`
`and
`
`ROBERT SOKOHL, ESQ.
`RICHARD M. BEMBEN, ESQ.
`LORI A. GORDON, ESQ.
`KEVIN D. RODKEY, ESQ.
`Sterne Kessler Goldstein Fox
`1100 New York Avenue, N.W.
`Washington, DC 20005
`
`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`
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`APPEARANCES:
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`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`ERIKA H. ARNER, ESQ.
`CORY C. BELL, ESQ.
`RACHEL L. EMSLEY, ESQ.
`Finnegan, Henderson, Farabow, Garrett & Dunner
`Two Freedom Square
`11955 Freedom Drive
`Reston, Virginia 20190-5675
`
`
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`and
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`LEIF R. SIGMOND, JR., ESQ.
`MICHAEL D. GANNON, ESQ.
`McDonnell Boehnen Hulbert & Berghoff LLP
`300 South Wacker Drive
`Chicago, Illinois 60606-6709
`
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`
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE PETRAVICK: All right. This afternoon we
`will be hearing consolidated arguments in CBM2015-00161, 181
`and 182.
`For the record, could you say your name again,
`Mr. Kessel.
`MR. KESSEL: Yes, good afternoon, Your Honors.
`This is Adam Kessel from Fish & Richardson, I'm going to be
`speaking on behalf of Petitioners, and I'm sharing this block of
`time with Mr. Sokohl.
`JUDGE PETRAVICK: Thank you.
`And for Patent Owner?
`MS. GANNON: Good afternoon, Your Honor, my
`name is Mike Gannon, I represent the Patent Owner, Trading
`Technologies. I will be doing a portion for this afternoon, and
`with me, Ms. Arner will be handling another portion.
`JUDGE PETRAVICK: Thank you. So, you have 90
`minutes total time for argument this afternoon. How much time
`would you like to reserve for rebuttal?
`MR. KESSEL: We would like to reserve 30 minutes
`for rebuttal.
`JUDGE PETRAVICK: You may begin when you're
`
`ready.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`MR. KESSEL: Thank you. I'll begin.
`Good afternoon, Your Honors. I am going to speak
`about the '304 patent, and then Mr. Sokohl will speak about the
`'132 and '411 patents. The '304 patent just has a single ground for
`institution, and that's under Section 101, and I will explain just
`briefly today why the claims of the '304 patent are fatally abstract
`under the test set out by the Supreme Court in Mayo and Alice,
`and the Federal Circuit's interpretation of those cases.
`Starting with step one, which is to look for whether the
`patent is directed to an abstract idea, the Board correctly found in
`the institution decision that the claims of the '304 patent are
`directed to the fundamental economic practice of placing an order
`based on displayed market information as well as updating
`market information. This is an age-old economic practice of
`trading in a market and having information about the market, and
`the claims put that information on the screen, and allow the trader
`to place an order. All very conventional and all abstract.
`Now, one of the clues to patentability under step one of
`Alice is whether the claims improve the functioning of a
`computer, and in the Patent Owner's response, it repeatedly
`characterizes the invention of the '304 patent as the structure,
`makeup and functionality of a GUI, G U I, graphical user
`interface tool. But that's not what the claims say.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`I'm going to skip over to slide 9, which has claim 1 on
`it, and we see here that the claimed steps of the independent claim
`of the '304 patent involve displaying information in a certain
`arrangement, then setting parameters and sending information
`like a trade order to another computer, i.e. the exchange, and
`that's what computers have been doing for decades, and, indeed,
`what computers were designed to do.
`There is nothing here structural. It's not really even
`clear from the Patent Owner's response which part is structure
`and which part is makeup, which part is functionality and why
`that is a relevant investigation for Alice step one purposes. That
`does not come from the guidance, the appellate guidance we
`have.
`
`It's worth noting that this claimed method does not
`improve the speed, accuracy or usability of a computer, it doesn't
`respond any faster to changing market data, or user input, and it
`uses the same input method as is conventional on computers, a
`mouse click, as opposed to, for example, claiming a brand new
`input device, which might be a different case. We're talking
`about conventional computer components, keyboard, mouse,
`display, doing nothing different from what they've always done.
`It's merely, at best, putting the information in a different
`arrangement on the screen.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`If there is an improvement in this patent, Your Honors,
`the improvement relates to the human activity part of the claim.
`It makes it easier for a trader to see information that might have
`been arranged differently before, in the trader's head before, on
`two different screens, different parts of the screen. We submit
`under the guidance we have, that is not enough to take it out of
`the abstract idea category under Alice step one.
`We've cited in the Petitioners' reply, expert testimony
`from the Patent Owner's expert, that these claims do not make
`computers faster, more efficient, use less energy, et cetera. And
`Patent Owner didn't come back and say, well, okay, it doesn't do
`any of those things, but here's the improvement, it improves the
`computer. All we have is an absence of an improvement to the
`computer, an absence of a technological solution to a
`technological problem, all we have is a claim that purports to
`make some information organized in a way that is purportedly
`easier for a trader to appreciate, and then a step for sending an
`order based on that information.
`The patent admits that any generic computer can
`perform the claimed method steps, and for this I will jump back
`to slide 2, we're quoting from the patent, column 4, lines 8
`through 11, again describing that this is generic computer
`technology, and to be clear, the Petitioners' point is not that any
`claimed directive that has generic computer technology in it is per
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`se unpatentable, the Petitioners' point here is that is not enough to
`take the abstract idea, take the claims outside of the realm of an
`abstract idea.
`How else do we know that the claims are not rooted in
`technology? I'm going to skip over to slide 14, which shows
`really the purported conception of this invention. This is a crude
`drawing created by the lead inventor about what he had in mind.
`I'm not sure that this was a napkin, but it's sort of tantamount to
`that, just drawing it out on a piece of paper. And Mr. Brumfield
`testified, and this is in the record, that he didn't and couldn't
`reduce this sketch to an actual GUI.
`And then, again, looking at what the problem presented
`and how it's solved, if we look at the patent, column 2, lines 61 to
`65, if a trader intends to enter an order at a particular price, but
`misses the price because the market moves, he may lose money.
`That's a human problem. This is in contrast to DDR, and Enfish,
`where the claims were directed at solving problems in the inner
`workings of the computer, and also were directed to how you
`solve those problems, rather than here which is directed to human
`problems and is not even offering a real solution, it's just claiming
`putting the information in this way, receiving the order and
`sending the order.
`Just briefly on the idea that it's allegedly improper to
`shrink down the claims to an abstract idea, it's clearly not. I
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`won't -- I won't overdo the point, but we have lots of Federal
`Circuit cases where there are 350, 400 words in the claim and
`they are succinctly summarized by a two-word or three-word
`abstract idea.
`Moving on to the inventive concept, which is step two
`of the Alice test. Again, it's not even really clear from the Patent
`Owner's response what is the inventive concept of the '304
`patent? Structure, makeup, functionality. That doesn't answer
`the question. What claim limitation or claim limitations, as best
`we can tell, reading the response, it's just a list of all the claim
`limitations. What is it that makes this something more than an
`abstract idea?
`Patent Owner has not offered a compelling inventive
`concept. They have hinted, maybe, that it's the static price axis,
`that it's a price axis that doesn't move when the market moves, in
`comparison to other systems where the axis does move when the
`inside market moves, but this is really just rearrangement and
`display of information. We know from Electric Power Group
`and CyberSource that that is not patent-eligible.
`If we look at figure 2 of the patent, which I have here on
`slide 3, this is admitted prior art. This is the old way of
`displaying information. Here, the inside market moves and the
`axis -- the -- let me see if I can say this right. The inside market
`always stays in the same point, which is at the top of this grid
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`that's shown in figure 2. In the claims, which we see on -- I don't
`have the figure right here, but in the claims, it's the inside market
`that moves. That's just one thing moving versus another thing
`moving. That's not technology, that's not an inventive concept,
`that's not enough to make this significantly more than an abstract
`idea.
`
`And again, this question of whether GUIs are
`technology. There's a lot of discussion in the Patent Owner's
`response about these claims being more technological than did
`DDR, or that they're GUIs, they're tools, so they're technology.
`That's a conclusion, and that's not what the test is. That's not
`what the Federal Circuit or the Supreme Court has said how you
`look at step two.
`You don't ask is it technology, because clearly, lots of
`patents have failed to survive a Section 101 challenge that have
`technology in it. That's -- that's too broad a question to figure out
`whether they're significantly more to satisfy the inventive concept
`inquiry of step two.
`And we know, also, that merely having a graphical user
`interface can't make it per se patentable because we have the
`Internet Patents case, which had a graphical user interface, we
`have the Mortgage Grader case, which had a graphical user
`interface. Neither was patentable under Section 101, and I think
`the Patent Owner would say, well, this is different because those
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`were more generic, but there's really no evidence that the
`graphical user interfaces in those cases were somehow -- or that
`in this case there's something more going on that the claims have
`specified to a greater degree of specificity how to render it on the
`screen. They're just saying where -- what to put where. They're
`not saying how.
`I think this case fits squarely within Internet Patents,
`Mortgage Grader, Electric Power Group, and several others.
`And since we have so much to cover on 103 on the other patents,
`the other, I have nothing more on 101, unless the Board has
`questions.
`And then just briefly, again, on the CBM jurisdiction
`issue, it's a financial patent, it's displaying market information, it
`should be enough to satisfy the financial prong, and then this
`nontechnological exception, this is actually quite related, of
`course, to the Section 101 argument, but these are not
`technological solutions, there's nothing here that is a new device
`or using a device in a different way, it's using a device in the way
`it's always been used. The only difference, allegedly, is that the
`information is organized differently.
`And that's all I have on CBM, and I will yield to
`Mr. Sokohl, unless there are any other questions.
`JUDGE PETRAVICK: I have no questions.
`Judge Plenzler?
`
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`JUDGE PLENZLER: No.
`MR. KESSEL: Okay. Thank you.
`MR. SOKOHL: I will ask for Stoney's help.
`Your Honors, I'll be talking about the '132 and '411
`patents. Most of everything that Mr. Kessel said applies to the
`'132 and '411 patents, they're in the same family, they have most
`of the same elements, and so I'm going to try not to echo the exact
`same statements, but I do want to at least create a record.
`Again, we have to ask ourselves what's the focus of the
`claims under step one of Alice, and the abstract idea which we
`can see on page -- excuse me, slide 4, regarding the '132 patent, is
`placing an order based on observed (plotted) market information,
`as well as updating market information. Exact same abstract idea
`for the '411 patent.
`A focus of these claims, as we discussed earlier today
`about another patent, can be seen both in the specification, as well
`as the claim language itself. You've got from the specification
`the present invention is directed to the electronic trading of
`commodities from the claim itself, a method of placing a trade
`order for a commodity on an electronic exchange and sending the
`trade order to the electronic exchange.
`We can see similar language in the '134 patent -- excuse
`me, the '411 patent. Slide 12. We have the last step, "send the
`trade order having a default quantity to the electronic exchange."
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`The purpose of these claims is to facilitate trading. That is a
`fundamental economic process. Very similar to Bilski, very
`similar to Alice.
`The '132 patent discloses -- excuse me, the '411 patent
`discloses the steps of displaying market information of a
`commodity relative to a price axis, an order entry region, relative
`to the price axis, and selecting a particular area in the order entry
`region to "set a price" and, "send the order having a default
`quantity to an electronic exchange in response to user input."
`These are all part of that abstract idea.
`The '132 patent, very similar, it's setting parameters for
`a trade, dynamically displaying market information along the
`static price axis, displaying order entry region, again, aligned
`along the static price axis, selecting a particular area in the order
`entry region through a single action, and then setting additional
`parameters of a trade and sending the trade to the electronic
`exchange.
`The difference between the '411 patent and the '132
`patent is just to -- it's this -- the '411 patent uses the term -- does
`not use the term "static price axis." That is not in the claim. And
`the '132 patent, the last clause regarding "single action" is
`different. The single action does not do both setting parameters
`and sending the trade.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`Now, Trading Technologies, again, did not did invent
`trading or electronic trading. The claim, to the extent that they
`have a lot of words, is because they bring in conventional
`terminology in the trading space, as well as conventional GUI
`terminology. There is nothing new in regard to the displayed
`data, there's nothing new in regard to the GUI techniques being
`used to interact with that data.
`Now, we've heard earlier today, and I'm guessing we're
`going to hear again about the structure, makeup and functionality
`of the GUI, but other than parroting -- the experts of Patent
`Owner parroting that language, nowhere in their papers do they
`identify the structure, makeup and functionality. Their answer
`usually is it's the entire claim. That's not the specificity that we --
`that's required, and as my co-counsel pointed out, this is not the
`test put forth by the Supreme Court and the Federal Circuit.
`The structure and makeup of a claim is not patentable --
`it is not a patentable distinction. We know this from
`CyberSource, organizing data is not sufficient. Electric Power
`Group, it's not sufficient. Data itself is an intangible, and should
`not be sufficient to take a claim outside of abstractness.
`Turn to slide 8. One of the advantages touted by Patent
`Owner is the visualization of the data, or that the trader might
`miss his price and this GUI allows the trader to get the
`appropriate price for the commodity. Well, these are business
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`solutions -- business problems, and they're providing business
`solutions. They are also, as my colleague pointed out, human
`problems. This is not a technical solution to a technical problem.
`There is nothing in the display of this data that is technical in any
`way.
`
`We believe that under Alice step one, the claims in both
`the '411 and '132 patent recite an abstract idea.
`Now, under step two, we look to see if there's anything
`meaningful. And again, the answer here is no. We know that
`merely pointing -- having a computer perform these operations is
`not sufficient, as my co-counsel said. We're not saying that just
`because we use a generic computer it's not sufficient. It's that
`they are just using a generic computer for its very sole purpose --
`for its primary purpose of all generic computers, which is to
`display data, or send a transmission, but there's nothing unique
`about their use of a generic computer.
`The fact that we have a field of use in the electronic
`trading space, not sufficient. The fact that we have data being
`received from a market, not sufficient. That's data gathering.
`And most importantly, again, if we look at the controlling
`precedent here, and the cases that have come out, like DDR, like
`Bascom, like Enfish, the cornerstone of all those cases is that
`somehow the computer's operation has been altered. We do not
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
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`have that here, and there is no dispute that we do not have that
`here.
`
`Let me expand upon that. Figure 2 of the '411 and '132
`patents is what the Patent Owner calls the prior art. And
`they've -- they do a lot of comparing and we're going to discuss
`figure 2 in relation to the obviousness rejection later today, but
`figure 2 GUI and the GUI defined and recited in claim 1, or the
`independent claims of the '411 and the 132 patent, the operation
`of the computer is identical. Identical.
`Information is displayed, a user can interact with that
`information, but the computer's operations remain constant. At
`bottom, the claims are not rooted in technology, they are rooted in
`assisting a trader to visualize data.
`Now, I said this earlier today, and I want to repeat it, in
`regard to the '411 and '132 patents, that these claims do not recite
`how to receive data, display it, other than along the price axis,
`enter a default quantity, select a location, or send an order. They
`do not require a new source of data or type of information, or new
`techniques for analyzing the data. Nor is there any type of
`inventive programming. Merely providing data that is more
`comprehensible to a trader does not transform the abstracted data
`into a statutory process. As such, there is no technological
`advance.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
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`
`And again, not to be too repetitive, but we want to make
`sure the record is clean, the CAFC in Enfish have said that claims
`that do not go beyond requiring the collection, analysis and
`display of available information -- market information is
`available information -- in a particular field, stating those
`functions in general terms without limiting them to technical
`means for performing the functions that are arguably an advance
`over conventional computer and network technology. That's
`insufficient.
`Electric Power went on to say the claims in that case
`defined a desirable information-based result and are not limited to
`inventive means of achieving the result, and thus fail under 101.
`We would submit the exact same result should be found here.
`Patent Owner doesn't make any arguments about the
`dependent claims in either the '132 or '411, so there's nothing to
`say there. Very briefly, if there's no questions about 101, just
`briefly I would like to mention the computer-readable medium
`claims. There is no definition in the specification, they use it in
`its conventional manner. The Patent Office has been implying
`and rejecting those type of claims, particularly with lack of a
`definition anywhere in the specification, as nonstatutory. They
`do read on nontransitory information, and therefore we would ask
`that you find the same as has happened in thousands of cases
`while prosecuting patents, that those claims are not statutory.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`If there are no questions, I would like to move on to
`TSE as prior art. I know we have discussed this this morning,
`and so I will be brief. I would like to show slide 18.
`Mr. Kawashima, from the Tokyo Stock Exchange, testified that
`the document that he wrote was disseminated to 200 participants
`of the Tokyo Stock Exchange in August 1998. That testimony is
`unrebutted. Two hundred participants received that document.
`That is his testimony.
`Now, there are two issues that Patent Owner raises.
`One is that a POSITA must obtain that document. That's not the
`case law. The case law, Blue Calypso, very clearly says, and I
`quote -- before I quote, a printed publication as a reference "must
`have been sufficiently accessible to the public interested in the
`art." And earlier today I referenced footnote 9. This is about
`dissemination. The TSE operating guide was disseminated to the
`interested public.
`The second issue that Patent Owner raises is
`corroboration, and as we discussed earlier, corroboration is
`unnecessary. The case law that has been cited by Patent Owner
`simply deals with the -- when the sole witness is trying to
`invalidate a patent through, for instance, public use or offer for
`sale, something along those lines, that evidence needs to be
`corroborated. That is not the case here.
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` 18
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`If there are no questions on TSE, I would like to move
`on to 103 grounds. The grounds for the '132 patent are TSE and
`Belden, and for the '411 patent, it's TSE, Belden and Togher. As
`we put forth in our petition, TSE teaches each element of these
`claims in the '132 and '411 patent, except in regard to the '411
`patent, single action order entry and the default, and in regard to
`the '132 patent, as the Board found in their institution decision,
`TSE actually teaches all the elements of the claim, particularly
`with the way the Board has construed, and we believe properly,
`the last clause of -- that includes a single action.
`We put forth in our petitions how TSE should be
`combined with Belden. It is a simple substitution of taking one
`mechanism for entering a trade, single action, with what's taught
`in TSE, which is a multi-action order entry. It would yield a very
`predictable result.
`But you don't have to take my word for the
`predictability. All we have to do is look to Mr. Thomas, Patent
`Owner's expert. Mr. Thomas has opined, or actually let me
`rephrase that, has testified that the figure 2 GUI, that we're going
`to hear a lot about, actually used single action order entry and
`defaults. You can see that in -- in the POPR for TD Ameritrade,
`page 8, and the Thomas report that we've cited in this proceeding,
`paragraph 20, as well as 2169, Exhibit 2169, paragraph 99.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`
`He has told us that skilled artisans would know how to
`combine single action and defaults with a trading GUI, almost
`identical trading GUI other than the arrangement of the data. So,
`there is no hurdle in making this combination. Belden clearly
`teaches single action, there's no dispute by Patent Owner as to
`that. And the combination, as we have set out in our petition,
`would yield a very predictable result.
`The same with defaults. Defaults are notoriously well
`known. It makes sense that when you want to do something over
`and over and over again, you're going to use a default. Togher
`teaches us that. Togher even tells us that using a default will help
`with speed. Again, simple combination to yield predictable
`results.
`
`Further, if we look at slide 22, you will see that not
`surprisingly, Mr. Thomas admits that all the elements of the claim
`can be found in the prior art. My colleague has handed me a note
`that says the Thomas report is Exhibit 1032 of the '411, it's is
`paragraphs 20 through 21, that I mentioned earlier.
`Furthermore, they speak to conventional wisdom over
`and over again, and if we see in slide 23 -- excuse me, slide 28,
`there were a number of GUIs out there. This is just a sampling.
`We have INTEX from 1984 that shows a very similar, if not
`identical arrangement. We have Gutterman that shows a very
`similar, if not identical arrangement. We have Weiss, same,
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
`
`similar if not identical arrangement. TSE, the document in this
`record, clearly shows the arrangement of the data and the GUI
`elements that we've been talking about here today.
`In short, we have presented an extremely strong prima
`facie case of obviousness.
`Now, I would like to turn now to the primary argument
`of Patent Owner, and that is secondary considerations. The
`Patent Owner has attempted to overwhelm the Petitioners and this
`Board by dumping volumes of documents into this proceeding
`that allegedly support secondary considerations. We would
`submit that the Patent Owner's attempts should fail. At the outset,
`I would like to just point out that we have moved to exclude the
`bulk of this evidence. My co-counsel, Mr. Kessel, will be talking
`about the motion to exclude, if I have time remaining, but
`regardless, if this evidence is submitted, we submit that it is
`insufficient.
`We should prevail on our obviousness grounds for four
`separate reasons. First, our very strong prima facie obviousness
`showing; second, the Patent Owner has failed to establish a
`nexus; third, the vast majority of Patent Owner's evidence is
`hearsay, as I've mentioned; and fourth, Patent Owner's evidence
`doesn't support secondary considerations, and I'm going to go
`through each one quickly.
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`CBM2015-00161 (Patent No. 6,766,304 B2)
`CBM2015-00181 (Patent No. 7,676,411 B2)
`CBM2015-00182 (Patent No. 6,772,132 B1)
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`We know from Line Rothman v. Target, which is 556
`F.3d 1310, that "a strong prima facie obviousness showing may
`stand even in the face of considerable evidence of secondary
`considerations." That's shown on slide 20, and also, slide 21,
`where the inventions represent no more than "a predictable use of
`prior art elements according to their established functions, the
`secondary considerations are inadequate to establish
`nonobviousness as a matter of law."
`We would submit that the strength of this prima facie
`case of obviousness, the predictability of the art that we're talking
`about, the admissions by Mr. Thomas that former electronic
`trading GUIs used these very same techniques, is sufficient. We
`don't believe that -- we believe that the secondary considerations
`can overcome this strong prima facie case.
`Now, let's look at nexus. The Patent Owner has failed
`to establish nexus between the claims and the secondary
`considerations. The case law is replete with discussion of nexus.
`It's the most important topic in most of these cases. And yet, the
`word "nexus" doesn't appear in Patent Owner's PORs for the '132
`and '411 patent. Nowhere. They have failed to make the case.
`But let's look at the evidence that they have arguably provided to
`show a nexus.
`If we turn to slide 24, they have provided a claim chart,
`and as an attachment to that claim chart, they have provided a
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`CBM201
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