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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`___________________
`
`Case CBM2016-00009
`Patent 7,685,055
`___________________
`
`
`
`REQUEST FOR REHEARING
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-145
`
`
`
`CBM2016-00009
`U.S. Patent No. 7,685,055
`
`TABLE OF CONTENTS
`
`Introduction ...................................................................................................... 1
`
`Standard of Review.......................................................................................... 1
`
`I.
`
`II.
`
`III. Arguments ........................................................................................................ 1
`
`A.
`
`The Board misapprehended the Petition’s analysis of the disputed
`limitation, and overlooked Patent Owner’s admission that TSE’s
`uncompressed mode has the required “plurality of locations.” ............ 2
`The Board misapprehended Petitioners’ boardx4-to-boardx2
`argument to be an impermissible new argument................................... 9
`IV. Conclusion .....................................................................................................12
`
`B.
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`- i -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`
`I.
`
`Introduction
`
`Petitioners respectfully request that the Board rehear its Final Written
`
`Decision (Paper 72) (“Decision”) that issued on April 26, 2017, and reverse its
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`holding that Petitioners failed to prove by a preponderance of the evidence that the
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`claims of U.S. Patent No. 7,685,055 (Exhibit 1001) (“’055 patent”) are obvious.
`
`II.
`
`Standard of Review
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`“The burden of showing a decision should be modified lies with the party
`
`challenging the decision. The request must specifically identify all matters the
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`party believes the Board misapprehended or overlooked, and the place where each
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`matter was previously addressed in a motion, an opposition, or a reply.” 37 CFR
`
`42.71(d). The Board reviews a request for rehearing for abuse of discretion. An
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`abuse of discretion “occurs when a court misunderstands or misapplies the relevant
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`law or makes clearly erroneous findings of fact.” Renda Marine, Inc. v. U.S., 509
`
`F.3d 1372, 1379 (Fed. Cir. 2007). As set forth below, that standard is met.
`
`III. Arguments
`The Board should rehear its Decision, which held that Petitioners failed to
`
`prove that TSE (Exhibit 1008) discloses displaying a bid and ask display region
`
`that comprises “a plurality of locations corresponding to the first plurality of price
`
`levels displayed along the static price axis, wherein each location corresponds to
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`one of the first plurality of price levels,” as recited in independent claim 1 of the
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`’055 patent. (Decision, 40-45.) First, the Board misapprehended the Petition’s
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`
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`- 1 -
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`
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`analysis of the disputed limitation, and overlooked Patent Owner’s admission that
`
`TSE’s uncompressed mode has the required “plurality of locations.” Second, the
`
`Board misapprehended Petitioners’ boardx4-to-boardx2 argument to be an
`
`impermissible new argument.
`
`A. The Board misapprehended the Petition’s analysis of the disputed
`limitation, and overlooked Patent Owner’s admission that TSE’s
`uncompressed mode has the required “plurality of locations.”
`
`The Petition, supported by testimony from Mr. Román, proves that TSE
`
`discloses displaying a bid and ask display region that comprises “a plurality of
`
`locations corresponding to the first plurality of price levels displayed along the
`
`static price axis, wherein each location corresponds to one of the first plurality of
`
`price levels.” (Paper 5 (“Petition”), 50-52.) The Decision’s contrary holding rests
`
`on clearly erroneous findings of fact, predicated on a misapprehension of the
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`Petitioner’s analysis of the disputed limitation. The Decision also overlooks Patent
`
`Owner’s admission that TSE’s non-compressed mode has the required “plurality of
`
`locations.” (Paper 32 (“POR”), 66.) For these reasons, the Board should reverse the
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`Decision.
`
`The Petition proves that TSE discloses the disputed limitation. It relies on
`
`TSE’s non-compressed mode (sometimes referred to as uncompressed mode) to
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`teach displaying (1) a first plurality of price levels along a static price axis and (2)
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`a bid and ask display region along the static price axis. (Petition, 45-46 (relying on
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`
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`- 2 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`Román’s Figure B when addressing displaying a first plurality of price levels along
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`a static price axis); 50-51 (also relying on Román’s Figure B when addressing
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`displaying a bid and ask display region along a static price axis).) Román’s Figure
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`B,1 reproduced below and on page 45 of the Petition, annotates the figure on 0107
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`of TSE to show the price axis (which includes price levels) and bid and ask display
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`regions:
`
`
`
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`1 The blue and red striping patterns that Mr. Román added to annotate the
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`figure on 0107 of TSE unequivocally show a plurality of locations in the bid and
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`ask display region along a static price axis.
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`- 3 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`As the Board acknowledged, “Petitioner equates price levels 002, 004, and
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`007 [shown on 0068 of TSE] … to the claimed first plurality of price levels” and
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`“Petitioner contends that the first plurality of price levels are displayed along a
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`static price axis when they are displayed along the price axis in the non-
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`compressed display.” (Decision, 40-41.)2 The figure on page 0068 of TSE, which
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`Petitioners rely on throughout the Petition (see, e.g., Petition, 36, 46-48, 51-52),
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`illustrates displaying the price levels 002, 004, and 007 in both non-compressed
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`(left) and compressed (right) modes, and displaying bid and ask display regions in
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`both non-compressed (left) and compressed (right) modes:
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`
`
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`2 See also Paper 70 (“Hearing Tr.”), 34:10-15 (Petitioners’ counsel
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`confirming that “the first plurality of price levels, which we’ve interpreted to be
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`002, 004, and 007. If you look at the left-hand side [of the figure on page 0068 of
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`TSE], that displays 002, 004, and 007. That’s what we interpreted to be the first
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`plurality of price levels.”)
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`(TSE, 0068 (reproduced at Petition, 36, 48); see also POR, 66.)
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`The Petition explains that TSE’s non-compressed mode discloses displaying
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`a bid and ask display region along a static price axis. (Petition, 50-51 (relying on
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`Román’s Figure B).) Indeed, it expressly stated that “[e]ach of the bid and ask
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`display regions of TSE comprises ‘a plurality of locations corresponding to the
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`first plurality of price levels displayed along the static price axis,’” which includes
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`TSE non-compressed mode. (Id. at 51 (emphasis added; italics in original
`
`removed).) After this discussion, the Petition reproduced Román’s Figure C to
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`illustrate “exemplary locations to highlight that each location corresponds to a
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`different price level of the first plurality of price levels displayed along the price
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`axis (11).” (Petition, 51 (emphasis added).) Importantly, this section of the Petition
`
`did not state that Román’s Figure C displays the locations corresponding to the
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`first plurality of price levels along a static price axis. (Id.)
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`Then, critically, the Petition relies on transitioning to TSE’s non-compressed
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`display (citing page 0068) to teach that the “number of the plurality of locations
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`changes according to adjusting the first plurality of price levels,” as claimed.
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`(Petition, 52.) The Petition states, “as shown in the figure on 0068 of TSE, the
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`number of levels changes from three to seven when the ‘first plurality of price
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`levels’ is adjusted to the ‘adjusted plurality of price levels.’” (Id. (italics
`
`removed).) Thus, the Petition indisputably relies on TSE’s non-compressed mode
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`- 5 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`to display a first plurality of price levels that have a corresponding plurality of
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`locations in the bid and ask display region; it does not only rely on TSE’s
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`compressed mode. And, the locations that correspond to the first plurality of price
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`levels (002, 004, and 007) are shown in the non-compressed mode. (Petition, 48
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`(reproducing 0068 of TSE).) It is clear error to hold otherwise.
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`The Board misapprehended the Petition’s analysis, particularly its reliance
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`on Román’s Figure C. The Board incorrectly concluded that because Mr. Román
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`annotated the compressed mode shown on 0068 of TSE, the “Petitioner relies upon
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`locations in the bid and ask region of TSE’s compressed display to teach the
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`claimed plurality of locations.” (Decision, 42.) But simply because Mr. Román
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`annotated the compressed mode to illustrate locations in the bid and ask display
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`region does not negate Petitioners’ reliance, throughout the Petition, on TSE’s
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`uncompressed mode to teach (1) a static price axis, (2) displaying the first plurality
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`of price levels, and (3) displaying the bid and ask display region along the static
`
`price axis. Said another way, the Petition in no way limited its analysis of the
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`disputed limitation to only TSE’s compressed mode or Román’s Figure C.3 Rather,
`
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`3 Moreover, the Board’s holding is not commensurate with the scope of the
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`claims. The plurality of locations are merely required to correspond to the first
`
`plurality of price levels displayed along the static price axis. Thus, the locations
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`- 6 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`the Petition relied on the entire figure on 0068 of TSE, which shows the bid and
`
`ask display region are shown in both non-compressed and compressed modes (see
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`POR, 66), to address the disputed limitation (Petition, 52). And, in describing this
`
`figure, Petitioners stated that “[w]hen transitioning TSE’s Board Screen from a
`
`compressed display to a non-compressed display … the ‘number of the plurality of
`
`locations changes ….’” (Id. (emphasis added; italics in original removed).) It is
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`clear error to read this sentence and conclude that Petitioners did not argue that
`
`TSE’s non-compressed display, which includes a static price axis, displays the
`
`claimed plurality of locations.
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`The Board also overlooked Patent Owner’s admission that “the bid and ask
`
`sides of both the compressed and uncompressed modes have” a plurality of
`
`locations, and provided an annotated version of the figure on page 0068 of TSE to
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`support its arguments:
`
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`depicted in Román’s Figure C (in the compressed mode) do correspond to the first
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`plurality of price levels, which are displayed along a static price axis in at least the
`
`uncompressed mode.
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`- 7 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
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`
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`(POR, 66.) Mr. Thomas made the same admission and provided the same
`
`annotated figure in his Declaration. (Ex. 2169 (“Thomas Decl.”), ¶¶103-04.)
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`There is simply no dispute that TSE’s non-compressed mode (referred to as
`
`“uncompressed” modes by Patent Owner) displays a bid and ask display region
`
`that includes a plurality of locations. Again, the Board acknowledged that
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`“Petitioner equates price levels 002, 004, and 007 … to the claimed first plurality
`
`of price levels.” (Decision, 40.) As shown in Patent Owner’s own annotated
`
`version of the figure 0068 of TSE, the non-compressed mode displays bid and ask
`
`display regions (red and blue, respectively) and have locations corresponding to
`
`price levels 002, 004, and 007. Any finding to the contrary, which overlooks Patent
`
`Owner’s admission and Mr. Thomas’s testimony, is clearly erroneous and should
`
`be reversed.
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`- 8 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
` Because the Board misapprehended the Petition’s analysis of the disputed
`
`limitation and overlooked critical admissions by Patent Owner and Mr. Thomas, it
`
`should rehear and reverse its finding that Petitioners failed to prove that the ’055
`
`claims are obvious.
`
`B.
`
`The Board misapprehended Petitioners’ boardx4-to-boardx2
`argument to be an impermissible new argument.
`
`Petitioners’ “transitioning TSE’s display from a non-compressed, boardx4 to
`
`non-compressed, boardx2” argument (Paper 42 (“Reply”), 23-25) is not an
`
`impermissible new argument because it is fully supported by the Petition (Petition,
`
`35-40) and it is responsive to the narrow claim constructions Patent Owner
`
`asserted, for the first time, in its Patent Owner Response (POR, 37-39).
`
`In its Decision, the Board recognized that “the Petition discusses TSE’s
`
`boardx4 mode and boardx2 mode in its overview of TSE (Pet. 35-40) and in
`
`connection with other limitations (Id. at 57) ….” (Decision, 44.) Each of Mr. Rho’s
`
`and Mr. Román’s original Declarations, which the Board did not address in its
`
`Decision, also provides a detailed analysis of TSE’s various display modes,
`
`including the boardx4 mode and the boardx2 mode. (Ex. 1004, ¶¶30-36; Ex. 1003,
`
`¶¶76-84.) And, each of the Petition, Mr. Rho’s original Declaration, and Mr.
`
`Román’s original Declaration explain that TSE’s boardx4 mode displays seven
`
`price levels, and TSE’s boardx2 displays 20 price levels. (Petition, 36-37; Ex.
`
`1003, ¶77; Ex. 1004, ¶31.)
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`- 9 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`Given these discussions, the Petition put Patent Owner on notice of the
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`numerous, selectable display modes disclosed by TSE and of the number of price
`
`levels that are displayed in such modes. In re NuVasive, Inc., 841 F.3d 966, 972
`
`(Fed. Cir. 2016) (finding that a petition’s mere citation to text in a reference was
`
`sufficient to put a patent owner on notice of the reference’s teaching). Indeed, the
`
`discussions in the Petition, Mr. Rho’s original Declaration, and Mr. Román’s
`
`original Declaration are far more expansive than the mere citation in NuVasive that
`
`the Federal Circuit found to provide sufficient notice. Id.
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`The ’055 specification does not discuss adjusting price levels by adding new
`
`price levels; it discusses adjusting price levels via compressing and uncompressing
`
`price ticks. (’055 patent, 33:19-34:2; see also Petition, 49 (“The ’055 patent
`
`specification agrees, explaining that the adjusting step may be performed at any
`
`time using an interactive ‘consolidation control icon,’ which is a slider that allows
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`the user to adjust the number of price levels as desired.”).) This indicated to
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`Petitioners, when drafting the Petition, that the claimed “adjusting” functioned the
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`same as (or similar to) TSE’s disclosed transition from compressed to non-
`
`compressed modes (and vice versa).
`
`But in its POR, Patent Owner construed the “adjusting” step, for the first
`
`time, to require adding price levels. (POR, 37-39.) Critically, the POR’s
`
`construction relies on figures that are not in the ’055 patent. (Id.) And, Mr.
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`- 10 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`Thomas testified that he did not know who created the figures. (Ex. 1036, 111:2-
`
`113:10.) So Petitioners could not have known Patent Owner’s arguments with
`
`respect to the “adjusting” step, which require a different type of “adjusting” than
`
`described in the specification and rely on figures not found in the specification,
`
`when they filed the Petition. Thus, Petitioners’ boardx4-to-boardx2 argument in
`
`the Reply is properly responsive to Patent Owner’s narrow claim constructions that
`
`were presented for the first time in the POR. 37 C.F.R. § 422.3(b). Likewise, Mr.
`
`Rho’s Reply Declaration (Ex. 1035) is directly responsive to Patent Owner’s claim
`
`constructions. (Ex. 1035, ¶22 (“I also understand that, applying this interpretation,
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`TT argues that transitioning TSE’s display from a compressed price display
`
`method to a non-compressed price display method fails to teach or suggest the
`
`limitation ‘adjusting …’ because (according to TT) this transition does not add
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`price levels to the display.”).)
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`Additionally, the Board misapprehended Mr. Rho’s Reply Declaration (Ex.
`
`1035) as necessary for Petitioners’ to make out their prima facie case; it is not.
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`Petitioners made out their prima facie in the Petition, which was supported by
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`Declarations from Mr. Rho and Mr. Román. (Ex. 1004; Ex. 1003.) Notably, the
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`Board twice instituted review of the ’055 patent as obvious over TSE, relying on
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`TSE’s teaching of transitioning between non-compressed and compressed modes
`
`to satisfy the claimed “adjusting.” (Paper 20; CBM2014-00137, Paper 19.) Mr.
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`- 11 -
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`Rho’s Reply Declaration merely responds to Patent Owner’s arguments by
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`referencing teachings of TSE that Mr. Rho discussed at length in his original
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`Declaration. (Ex. 1004, ¶¶30-31.)
`
`The Board misapprehended Petitioners’ boardx4-to-boardx2 argument to be
`
`an impermissible new argument, the Decision should be reversed and the Board
`
`should consider Petitioners’ boardx4-to-boardx2 argument.
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`IV. Conclusion
`For the reasons stated above, Petitioners respectfully request that the Board
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`rehear and reverse the Decision.
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`
`
`Date: May 26, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert Sokohl/
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
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`- 12 -
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`
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`CBM2016-00009
`U.S. Patent No. 7,685,055
`CERTIFICATION OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the
`
`foregoing REQUEST FOR REHEARING was served electronically via e-mail
`
`on May 26, 2017, in its entirety on the following Attorneys for Patent Owner:
`
`Michael D. Gannon, Leif R. Sigmond, Jr.,
`Jennifer M. Kurcz, Cole B. Richter
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`richter@mbhb.com
`
`Steven F. Borsand, Jay Q. Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com
`jay.knobloch@tradingtechnologies.com
`
`
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert Sokohl/
`
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`
`
`Date: May 26, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
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