Trials@uspto.gov
`571-272-7822
`
`Paper 77
`Entered: August 24, 2017
`
`
`
`
`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 No. 7,685,055 B2
`____________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`INTRODUCTION
`Petitioner filed a Request for Rehearing (Paper 74, “Req. Reh’g”) of our
`Final Decision (Paper 72, “Dec.”) determining that Petitioner failed to shows by a
`
`
`571-272-7822
`
`Paper 77
`Entered: August 24, 2017
`
`
`
`
`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 No. 7,685,055 B2
`____________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`INTRODUCTION
`Petitioner filed a Request for Rehearing (Paper 74, “Req. Reh’g”) of our
`Final Decision (Paper 72, “Dec.”) determining that Petitioner failed to shows by a
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`preponderance of the evidence that claims 1–19 of U.S. Patent No. 7,685,055 B2
`(Ex. 1001, “the ’055 patent”) are unpatentable under 35 U.S.C. § 103. The
`Request focuses on the issue of whether independent claim 1 of the ’055 patent is
`obvious over TSE1.
`For the reasons that follow, the Request for Rehearing is denied.
`
`
`ANALYSIS
`When rehearing a decision on petition, the Board will review the decision
`for an abuse of discretion. See 37 C.F.R. § 42.71(c). An abuse of discretion may
`be determined if a decision is based on an erroneous interpretation of law, if a
`factual finding is not supported by substantial evidence, or if the decision
`represents an unreasonable judgment in weighing relevant factors. See Arnold
`Partnership v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004).
`The party challenging the decision has the burden of showing a decision
`should be modified, and the request for rehearing must identify specifically all
`matters the party believes the Board misapprehended or overlooked. 37 C.F.R.
`§ 42.71(d). In its Request for Rehearing, the dissatisfied party must
`(1) “specifically identify all matter that party believes the Board misapprehended
`or overlooked” and (2) identify the place where each matter was previously
`addressed. Id.
`Petitioner argues that we misapprehended the analysis in the Petition
`concerning TSE’s disclosure of claim 1’s limitation of “a plurality of locations
`
`
`1 Tokyo Stock Exchange Operation System Division, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998)
`(Ex. 1008).
`
`2
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`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”
`(“the disputed limitation”). Id. at 1–2. According to Petitioner, we
`misapprehended the analysis in the Petition when we determined that TSE’s
`compressed mode did not disclose the disputed limitation. See id. at 2–9 (citing
`Dec. 40–45). Petitioner asserts that the Petition did not rely only on TSE’s
`compressed mode to meet the disputed limitation but also relied upon TSE’s non-
`compressed mode. Id. Petitioner argues that “the Petition in no way limited its
`analysis of the disputed limitation to only TSE’s compressed mode or Roman’s
`Figure C,” but relied upon the entirety of the figure on page 0068 of TSE, which
`show both the non-compressed and compressed modes. Id. at 6–7.
`Petitioner’s argument that we misapprehend the analysis in the Petition is
`not persuasive because we could not have misapprehended an analysis not
`presented adequately in the Petition. Contrary to Petitioner’s argument, the
`analysis in the Petition relies upon TSE’s compressed mode, and not TSE’s non-
`compressed mode, to show how the disputed limitation is found in the prior art. In
`this regard, the Petition states:
`Each of the bid and ask display regions of TSE comprises “a
`plurality of locations corresponding to the first plurality of price levels
`displayed along the static price axis.” FIG. C of Mr. Roman’s
`Declaration (reproduced below) labels three exemplary locations to
`highlight that each location correspond to a different price level of the
`
`first plurality of price levels displayed along the price axis ⑪. (Roman
`
`Decl., ¶ 103.)
`
`
`
`3
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`
`
`When transitioning TSE’s Board Screen from a compressed
`display (i.e., the claimed “adjusting”), the “number of the plurality of
`locations changes according to adjusting the first plurality of price
`levels.” For example, as shown in the figure on 00068 of TSE, the
`number of levels changes from three to seven when the “first plurality
`of price levels” is adjusted to the “adjusted plurality of price levels.”
`(TSE, p. 0068.) Thus, TSE discloses the “displaying a bid and ask
`display region” step. (Roman Decl., ¶104.)
`Paper 5, 51–52. Other statements made in the Petition and Petitioner’s Reply also
`show that the analysis in the Petition relies upon TSE’s compressed mode to meet
`the disputed limitation. For example, the Petition points to the compressed display
`to show the claimed first plurality of price levels—“the compressed display has
`three price levels: ‘002,’ ‘004,’ and ‘007’ (e.g., “a first plurality of price levels).”
`Id. at 47. The Petition also points to TSE’s transition from compressed mode to
`non-compressed mode to meet the claimed step of adjusting the first plurality of
`price levels to an adjusted plurality of price levels. Id. The Petitioner’s Reply,
`pointing to the compressed display, states “the blank screen locations above the
`007 and below the 002 in TSE’s compressed mode aren’t price levels (Rho-Reply-
`
`4
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`Decl., ¶¶6-10), and thus the regions to the right and left of these blank screen
`locations aren’t locations that correspond to price levels.” Paper 42, 22–23.
`Petitioner attempts in its Request for Rehearing to recast its analysis in the
`Petition as relying upon TSE’s non-compressed mode to meet the disputed
`limitation. As can be seen from the reproduced portion above, the Petition points
`to the TSE’s compressed mode and not to TSE’s non-compressed mode to meet the
`disputed limitation. Further, in reply to Patent Owner’s argument that the
`compressed mode did not meet the disputed limitation because the compressed
`mode did not have a static axis (see Paper 32, 59–60), Petitioner argued that the
`compressed mode is static, but did not point to the non-compressed mode to meet
`the disputed limitation. See Paper 42, 17–21. A request for rehearing is not an
`opportunity to supplement the Petition and make arguments that were not made
`adequately in the Petition. We, thus, are not persuaded that we misapprehend the
`analysis in the Petition concerning the disputed limitation.
`Petitioner also requests rehearing of our determination that its “boardx4-to-
`boardx2” argument to be an impermissible new argument. Req. Reh’g 9–12.
`Petitioner disagrees that its “boardx4-to-boardx2” argument is an impermissible
`new argument and asserts that it is fully supported by the Petition and is responsive
`to a narrow claim construction Patent Owner asserted for the first time in its Patent
`Owner Response. Id. Petitioner, thus, argues that the Board should consider its
`“boardx4-to-boardx2” argument. Id.
`
` Petitioner presents no sufficient reason for us to modify our decision, as
`mere disagreement is not a sufficient basis for requesting rehearing.
`For the reasons explained in our Decision, Petitioner’s “boardx4-to-boardx2”
`argument raises a new argument in the Petitioner’s Reply that exceeds the proper
`
`5
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`scope of a reply. See Dec. 44–45. An argument that raises a new issue that
`exceeds the proper scope of reply will not be considered. Office Patent Trial
`Practice Guide, 77 Fed. Reg. 48,756, 48,767 (Aug. 14, 2012); Intelligent Bio-
`Systems, Inc. v. Illumina Cambrige Ltd., 821 F.3d 1359, 1361–70 (Fed. Cir. 2016)
`(affirming the Board’s refusal to consider a reply that improperly raised a new
`issue).
`
`
`
`ORDER
`
`Accordingly, it is:
`ORDERED that Patent Owner’s Request for Rehearing is denied.
`
`
`
`
`
`
`
`
`PETITIONER:
`
`Robert Sokohl
`Lori Gordon
`Richard Bemben
`STERNE, KESSLER, GOLDSTEIN & FOX
`Rsokohl-ptab@skgf.com
`Lgordon-ptab@skgf.com
`Rbemben-ptab@skgf.com
`
`
`
`
`
`6
`
`
`
`
`
`
`CBM2016-00009
`Patent No. 7,685,055 B2
`
`
`PATENT OWNER:
`
`Leif Sigmond
`Cole Richter
`Michael Gannon
`Jennifer Kurcz
`McDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`sigmond@mbhb.com
`richter@mbhb.com
`gannon@mbhb.com
`kurcz@mbhb.com
`
`Kevin Rodkey
`Rachel Emsley
`Cory Bell
`Joshua Goldberg
`Erika Arner
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`Kevin.rodkey@finnegan.com
`Rachel.emsely@finnegan.com
`Cory.bell@finnegan.com
`Joshua.goldberg@finnegan.com
`Erika.arner@finnegan.com
`
`
`Steven Borsand
`Jay Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt-patent-cbm@tradingtechnologies.com
`Jay.knobloch@tradingtechnologies.com
`
`
`
`
`
`
`7
`
`
`
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