`IBG ET AL. v. TRADING TECH
`CBM2016-00009
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`Response to Communication Pursuant to Article 101(1) and Rule 81(2) to
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`(3) EPC dated 1 December 2010 (the “Article 101(1) Communication”)
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`The proprietor’s response to the Article 101(1) Communication is set out below using the
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`same numbering as is used within that communication. We have also sought to address
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`additional issues raised by Opponent I in its response dated 30 March 2011. However,
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`where any point raised has not been specifically addressed, this should not be taken to
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`mean that we agree with Opponent I on that point.
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`General
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`s a enera
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`g
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`lp
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`a
`oin we no e
`e erm insi e mar e
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`t,
`t thttht
`“
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`A
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`use
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`in our a
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`d
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`ppl
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`ica ion is a erm
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`t
`t
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`of art that is understood by the skilled person as referring to the combination of the
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`highest bid price and the lowest ask price (page 8, lines 2 to 3 of the application as filed).
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`References by the Opposition Division to the “internal market” are therefore taken to be
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`references to the “inside market”.
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`Article 100(c) EPC 1973 — Added subject-matter
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`The arguments raised by the Opposition Division with respect to the subject matter
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`extending beyond the content of the application as filed are addressed below. We will also
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`address certain generalisation issues in an expert declaration to be filed later.
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`4.
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`Article 100(c) EPC 1973 — Independent claim 1
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`4.1
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`Display of market depth (deletion)
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`We agree with the Opposition Division that claim 1 as granted does not extend beyond the
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`content of the application as filed in relation to the fact that the feature of the display of
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`the market depth in addition to the inside market is not recited in claim 1.
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`We note that Opponent I has made no further comment on this point.
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`Page 2 of 42
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`Page 2 of 42
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`4.2
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`“Field of static prices”
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`We agree with the Opposition Division that claim 1 as granted does not extend beyond the
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`content of the application as filed with respect of the use of the term above.
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`We note that Opponent I has made no further comment on this point.
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`4.3
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`First and second indicators
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`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
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`beyond the content of the application as filed on the basis that this is an impermissible
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`generalisation of the embodiments illustrated in Figures 3 and 4, in which the display of the
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`inside market is allegedly intimately tied to the display of bid and ask quantities.
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`The first and second indicators show the best prices, namely, the best bid price and the
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`best ask price. They do this by placing some sort of indication at a location in alignment
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`with the best bid price and the best ask price in the field of static prices. For instance, the
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`paragraph bridging pages 7 and 8 of the application as filed describes that the “inside
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`market” is the highest bid price and the lowest ask price. The paragraph bridging pages 14
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`and 15 of the application goes on to state that “[t]he inside market and market depth
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`ascend and descend as prices in the market increase and decrease.” The paragraph
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`continues: “[m]arket depth similarly ascends and descends the price column, leaving a
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`vertical history of the market.” The same paragraph states: “Figure 4 shows a screen
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`displaying the same market as that of Figure 3 but at a later interval where the inside
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`market, cells 1101, has risen three ticks.” The application continues to state throughout
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`that the market “ascends and descends” the price column.
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`In addition, the second full
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`paragraph at page 15 of the application states: “Just as the market ascends and descends the
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`vertical Mercury display shown in Figures 3 and 4, the market will move left and right in
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`the horizontal Mercury display.” (emphasis added). At least based on Figures 3 and 4 of
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`the application as filed, a user will see the indicators associated with the inside market being
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`moved — these are the claimed movable indicators and the application as filed, and the
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`figures, describe this movement.
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`Page 3 of 42
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`Page 3 of 42
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`It is not the actual numbers that move between the cells of the display. Opponent I
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`supports that in paragraph 14 of the Opponent I’s response.
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`(see, e.g., “However, the bid
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`quantity 18 which represents the quantity of bids at price 89 does not move.”). Rather, it is
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`the indication aligned with a price that moves. An analogy can be drawn with the mercury
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`rising and falling in a thermometer to indicate whether the temperature has gone up or
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`down, without the need to look at the precise temperature values. Because the particular
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`numbers are not actually moving (changing positions), it is the indicators that allow the
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`user to see the market movement (e.g., as the best bid price indicator or the best ask price
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`indicator moves up or down in the vertical example). Furthermore, the references in the
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`application as filed to the market moving in the display as the inside market prices increase
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`and decrease provide an explicit disclosure of the movable indicators rather than movable
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`numbers.
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`The Opposition Division in the fifth paragraph on page 18 of the Article 101(1)
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`Communication states (emphasis added):
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`In this embodiment, there is no explicit display of the internal market but the
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`user can identify the internal market by identifying the highest price in the
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`price column 1004 for which a bid quantity is displayed in the BidQ column
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`1003 and the lowest price in the price column for which an ask quantity is
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`displayed in the AskQ column 1005.... The internal market is thus conveyed
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`to the user in an implicit manner on the basis of the display of the bid and
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`ask quantities in the BidQ and the AskQ columns and their relative positions
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`with respect to the prices in the price column.
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`While the Opposition Division is using the term “convey” in the paragraph quoted above,
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`it could equally well have used the term “indicate”. Additionally, displaying the quantities
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`is not even necessary to convey the inside market.
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`While a number (here quantity) itself gives some information, the presence or absence of
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`the number in a cell also provides information that is separate from the value of the
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`number and is capable ofindicating the highest or lowest bid/ask price. We submit that it
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`Page 4 of 42
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`Page 4 of 42
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`is the presence or the absence that is the indicator in the application as filed, not the
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`number itself. To illustrate, consider, if the numbers in the bid quantity column and the
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`ask quantity column were simply replaced by blocks of the same colour, the information
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`about the corresponding highest and lowest price levels would not be lost, since the point
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`at which the blocks turn to blank cells still indicates the inside market 1101 in Figure 4.
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`The originally filed dependent Claim 5 supports using blocks of different colours, because
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`it recites bids and asks being displayed using different colours. Therefore, it is fair to say
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`that the application discloses a first indicator at a first area aligned with a first price level
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`and a second indicator at a second area aligned with a second price level, the price levels
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`representing the current highest bid and lowest ask price. We submit that use of the term
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`indicators is far more accurate to describe the market movement in the display, because bid
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`and ask quantities do not technically move on the screen.
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`The originally filed independent claims did not recite the limitation of quantities. Rather,
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`for example, independent claim 1 states “displaying a plurality of bids” and “displaying a
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`plurality of asks”. When read in view of original dependent claim 4, which requires bid and
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`ask quantities being displayed, the use of “bids” and “asks” in original claim 1 indicates that
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`the actual quantities and the numbers themselves do not have to be displayed. This clearly
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`provides support for the “first indicator” and the “second indicator” because limiting the
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`display of the inside market to the display of bid and ask quantities would render the
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`language of claim 4 meaningless. Thus, what is displayed along an axis does not have to be
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`quantities, making the use of the first and second indicators to represent the inside market
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`consistent with the originally filed claims. Independent claim 22 further supports this, as it
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`recites “a dynamic display of a plurality of bids and a plurality of asks, including the bid and
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`ask quantities of the commodity”, also making clear that the displayed plurality of bids and
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`asks can include, but is not the same as, quantities.
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`The Opposition Division notes that “claims 1, 8 and 15 do not specify that bid and ask
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`quantities are displayed, they do also not contain any feature directed to how the internal
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`market is displayed and cannot therefore support the generalisation. We disagree, as the
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`originally filed claims (e.g., claim 1) can be read to include displaying bids and asks at the
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`inside market and away from the inside market.
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`Page 5 of 42
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`Page 5 of 42
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`The application as filed defines the inside market as “the highest bid price and the lowest
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`ask price.” (see, e.g., the paragraph bridging pages 7 and 8). The application defines the
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`market depth as “the order book with the current bid and ask prices and quantities.” (see,
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`e.g., Id.) Thus, market depth is additional information beyond the inside market and
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`includes quantities at the inside market. It is clear based on the application that displaying
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`the “market depth” and thus bid/ask quantities at the inside market is not the key feature
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`of the claimed invention. The second full paragraph at page 8 of the application as filed
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`states: “Some exchanges supply an infinite market depth, while others provide no market
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`d_e%h....” (emphasis added). The Opposition Division agrees that the present invention
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`does not need to display the market depth at all.
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`(see, e.g., Section 4.1). If no market
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`depth is received from an exchange, the indicators associated with the inside market, i.e.,
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`the current highest bid price and the current lowest ask price, are provided to show the
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`market ascend and descend as prices in the market increase and decrease. Thus, the
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`application as filed provides an explicit disclosure of the first and second indicators
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`In conclusion, we submit that the use of the term “first and second indicators” is directly
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`derivable from the application as filed and is not an impermissible generalisation.
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`4.4
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`Display of bid and ask quantities (deletion)
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`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
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`beyond the content of the application as filed in relation to the failure to recite the display
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`of bid and ask quantities in association with the display of the inside market.
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`The Opposition Division refers to the fact that granted claim 1 contains features directed
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`to the display of the inside market which may be seen as representing an intermediate
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`generalisation between original independent claim 15 and the embodiment illustrated by
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`Figures 3 and 4, because claim 1 does not also mention the display of bid and ask quantities.
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`We disagree at least based on the arguments presented in relation to Section 4.3 above.
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`Page 6 of 42
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`Page 6 of 42
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`Additionally, the Opposition Division agrees in relation to Section 4.1 that it is entirely
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`clear from page 8, lines 13 to 17 of the application as filed that the present invention does
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`not need to display the market depth at all. Clearly, it cannot display the market depth if
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`the market depth is not provided by an exchange. Further, lines 16 to 17 make it clear that
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`the user can choose how far into the market depth to display, which would implicitly
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`suggest that the user can choose not to display any of the market depth. Therefore, it is
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`not an intermediate generalisation to replace market depth with the inside market in claim 1,
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`without also requiring a display of the associated bid and ask quantities.
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`4.5
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`Update of the display of the first and second indicators
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`We agree with the conclusion of the Opposition Division that claim 1 as granted does not
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`extend beyond the content of the application as filed in this respect, in particular in relation
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`to the u date ha
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`Opponent I comments at paragraph 13 that there is no “visual aid” to assist in determining
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`where the inside market is. This is manifestly incorrect, as is apparent from a comparison
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`of the displays in Figures 3 and 4 of the application as filed that the movement has clearly
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`occurred between these Figures. The clear visual difference between Figures 3 and 4 also
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`negates the idea expressed by Opponent I at paragraph 10, that it is only the user’s own
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`knowledge that identifies the inside market. A skilled person (or for that matter an entirely
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`unskilled person) asked to look at the BidQ, AskQ and Prc regions in Figures 3 and 4
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`would have no difficulty in pointing to the key difference between these displays.
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`Additionally, the application clearly teaches the importance of visually aiding the user in
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`seeing where the inside market is. As stated in relation to Section 4.3 above, the paragraph
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`bridging pages 14 and 15 of the application states that the inside market (and the market
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`depth) ascends and descends as prices in the market increase and decrease. The application
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`continues: “Just as the market ascends and descends the vertical Mercury display shown in
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`Figures 3 and 4, the market will move left and right in the horizontal Mercury display.”
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`(see, e.g., the second full paragraph at page 15).
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`Opponent I further comments at paragraph 14 that “with reference to Figures 3 and 4
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`which show a market depth, there are no indicators which move relative to the field of
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`Page 7 of 42
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`Page 7 of 42
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`static prices — the patentee implies that the bid and ask quantities might be moving
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`indicators, but whilst the bid and ask quantities are updated, they do not move. Based on
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`the arguments presented in relation to Section 4.3 above, we agree that the actual numbers
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`associated with the bid and ask quantities are not moving.
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`In fact, what is actually moving
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`is the “indicators”, as claimed. The step of updating makes it even more evident that the
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`use of the first and second indicators to show the market movement is directly derivable
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`from the application as filed.
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`Finally, the comments in paragraphs 13 to 15 of Opponent I’s response regarding the
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`requirement for “movement” of the indicators would appear to be excessively pedantic.
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`They should be compared with the arguments in paragraph 51, where the opponent has no
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`difficulty with a character “moving” across the screen, despite the fact that pixels do not
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`physically move, just appear and disappear in a given location.
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`4.6
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`“Means for setting a trade order parameter”
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`We agree with the conclusion of the Opposition Division that claim 1 as granted does not
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`extend beyond the content of the application as filed in relation to this feature.
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`We note that Opponent I has made no further comment on this point.
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`4.7
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`Areas of the order entry region
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`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
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`beyond the content of the application as filed in that the areas of the order entry region are
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`not stated to be in the dynamic display of bid and ask quantities.
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`The essential feature of the claimed invention in relation to order entry is that the selected
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`area is aligned with a price level, since this gives rise to the technical effect of increasing
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`the likelihood of entering orders at desired prices. The application as filed includes many
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`examples describing the requirement of clicking on a row that corresponds to or is aligned
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`with a desired price without requiring that the selected area is directly in the display of bid
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`and ask quantities. The application as filed describes:
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`Page 8 of 42
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`Page 8 of 42
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`“Using the right mouse button, an order would be sent to market at the price that
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`corresponds to the row clicked.” (see, e.g., first full paragraph at page 17)
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`“If the trader chose a number value in the quantity description, a left click would
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`send an order to market for the current quantity chosen by the trader.” (see, e.g.,
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`the third full paragraph at page 18)
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`“A left click would enter an order with a price corresponding to the price row
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`clicked....” (see, e.g., the second full paragraph at page 18)
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`“[T]he system will determine that the total quantity for the trade order will be the
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`value of the R field
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`plus all quantities in the market for prices better than or equal
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`to the price in the row clicked.” (see, e.g., the paragraph bridging pages 19 and 20)
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`The application provides examples of placing orders by clicking in the “BidQ” column or
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`the “AskQ” column. However, even with respect to the provided examples, the application
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`makes it clear that what is essential in relation to the claimed order entry is that there is a
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`click in a location aligned with the desired price (eg, in the row that corresponds to the
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`desired price). The application as filed describes:
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`“A left click on the 18 in the BidQ column 1201 will send an order to market to sell
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`17 lots
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`of the commodity at a price of 89 (the corresponding price in the Prc
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`column 1204).” (see the paragraph bridging pages 16 and 17)
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`“Thus, a left click in the BidQ column 1201 in the 92 price row will send a buy
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`order to market at a price of 92....” (see the paragraph bridging pages 17 and 18);
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`“In other words, in the example of a right click in the AskQ column 1202 in the 87
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`price row....” (see, the first full paragraph at page 18)
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`“IfAskQ was clicked,
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`the system sends a sell limit order to the market at the
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`price corresponding to the row....” (see the first full paragraph at page 20)
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`“If BidQ Was clicked,
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`the system sends a buy limit order to the market at the
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`price corresponding to the row....” (see the first full paragraph at page 20)
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`At least based on the application as filed and the sections cited above, the skilled person
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`would understand that what is important is that the selected area is aligned with a price
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`level.
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`Page 9 of 42
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`Page 9 of 42
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`Therefore, it is not an intermediate generalisation that the areas of the order entry region
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`are not stated to be in the dynamic display of bid and ask quantities or in the same location
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`as the first and second indicators, because what is essential in relation to the claimed order
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`entry is that the selected area is in a location aligned with the desired price.
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`4.8
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`“User input means” / pointer, single action
`We disa ree with the conclusion of the O osition Division that claim 1 as
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`2%
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`ranted extends
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`2%
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`beyond the content of the application as filed on the basis that the single action of the user
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`input device is not specified.
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`The feature of claim 1 defines that each area that is aligned with a price level is selectable
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`by user input means and the selection of the area E an order message to the electronic
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`exchange based on the aligned price levels. Specifying that “selection” of the area “sends”
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`an order message clearly does not cover clicking in an area aligned with a price and then a
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`user moving a pointer to a send button in a pop—up window to send the order.
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`We agree with the conclusion of the Opposition Division that any user input means with
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`which an area of the screen can be selected can be used in the invention. Opponent I’s
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`argument at paragraphs 25 to 30 again represents an overly pedantic analysis. The wording
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`at page 6, line 27 to page 7, line 2 of our application clearly discloses that the input device
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`is not limited to a mouse and it would be an unreasonably strained reading of the disclosure
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`to limit the input device to a pointer device.
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`4.9
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`Order entry region / “trade order characteristic setting component”
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`We disagree with the conclusion of the Opposition Division that claim 1 as granted extends
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`beyond the content of the application as filed in relation to this feature.
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`We submit that the invention relates to “increase[ing] the speed of trading and the
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`likelihood of entering orders at desired prices with desired quantities”, as explained at page
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`12, lines 29-31 of the application as filed. While the determination of whether the order is
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`a buy order or a sell order is important in the commercial embodiment, this should not be
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`Page 10 of 42
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`Page 10 of 42
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`confused with the definition of the essential features of the claimed invention in relation to
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`order entry.
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`We submit, as explained in relation to section 4.7 above, that for claims reciting the order
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`entry region, the defining quality of that region is the alignment between selected areas and
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`the corresponding price levels. The position of the pointer in the bid or ask display areas
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`with respect to placing a buy order and a sell order is set out in the original dependent
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`claim 36. More specifically, dependent claim 36 recites that the order is a buy order “if the
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`position of the pointer
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`is within the display of bids,” and that the order is a sell order “if
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`the position of the pointer
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`is within the display of asks.” It is therefore entirely clear
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`that the reference to the position of the pointer in the original claim 35 refers to its
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`position in relation to the price level.
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`5.
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`Article 100(0) EPC 1973 — Independent claims 29 and 53
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`We disagree with the opinion of the Opposition Division for the same reasons already
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`discussed above in relation to claim 1.
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`6.
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`Article 100(0) EPC 1973 — Dependent claims
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`6.1
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`Claim 3: “order type”
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`We disagree with the conclusion of the Opposition Division that granted claim 3 extends
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`beyond the content of the application as filed, which appears to be based on a strained
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`reading of the claim. On an ordinary reading of the claim, claim 3 says no more than that
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`the order specifies a price and whether the order is a buy order or a sell order. Original
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`claim 35 also broadly states that the position of the pointer is “over an area in said dynamic
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`display of bids and asks”, which does not, on a similarly strained reading, exclude the
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`possibility that another type of order other than those in claim 36 is selectable in the
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`specified area.
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`We will further clarify that the order type is a buy or sell by amendment in the requests
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`filed in response to the expected summons to attend oral proceedings.
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`Page 11 of 42
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`Page 11 of 42
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`6.2
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`Claims 5, 6, 34, 35: re—centering command/action of the user input device
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`We agree with the conclusion of the Opposition Division that the claims mentioned above
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`do not extend beyond the content of the application as filed.
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`As will be presented in relation to section 16 below, we disagree with the Opposition
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`Division’s comments regarding the interpretation of the term “static. We also note that if
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`there is an issue whether re—centering should be limited to manual re—centering, the issue
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`should be restricted to the dependent claims that are specifically directed to re—centering.
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`6.3
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`Claims 8 and 47: areas in which the indicators are displayed
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`We disagree with the conclusion of the Opposition Division that these claims extend
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`beyond the content of the application as filed. On the assumption that the recital of
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`indicators is permitted as argued in relation to Section 4.3 above, then these claims merely
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`recite that the first indicator is displayed in one of the areas of the bid display region (for
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`example, the cells 1003 in Figure 3) and the second indicator is displayed in one of the
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`areas of the ask display region (for example, the cells 1004 in Figure 3). Claim 1 of the
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`patent already recites that the first indicator is associated with the current highest bid price
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`and the second indicator with the current lowest ask price, and these claims do not alter
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`that — the indicators are displayed in any of the cells depending on the highest bid/lowest
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`ask price.
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`6.4
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`Claim 13: horizontally oriented regions comprising columns (by dependency)
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`We will address this objection by amendment in the requests filed in response to the
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`expected summons to attend oral proceedings.
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`6.5
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`Claim