`Filed: March 6, 2015
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`
`
`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`and TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`
`
`
`
`
`
`
`
`
`
`Case CBM2014-00137
`Patent 7,685,055
`
`
`
`
`
`
`
`
`Patent Owner’s Response
`
`
`
`
`
`IBG 1030
`CBM of U.S. Pat. No. 7,685,055
`
`
`
`
`
`
`
`Case No. CBM2014-00137
`
`TABLE OF CONTENTS
`
`INTRODUCTION ....................................................................................................... 1
`
`THE CLAIMS ARE DIRECTED TO STATUTORY SUBJECT
`MATTER IN SATISFACTION OF 35 U.S.C. § 101. ........................................... 3
`
`A.
`
`The Patented Invention Solved Technical Problems with Prior
`GUIs .................................................................................................................... 3
`
`B.
`
`C.
`
`D.
`
`E.
`
`1.
`
`2.
`
`The Prior GUI and Associated Problems .......................................... 4
`
`The Claimed Solution to the Problem: A New GUI That
`Improved Speed and Usability ............................................................. 6
`
`The Claimed Features and Functionality of the Improved GUI
`Are An Inventive Concept, Not Conventional. .......................................... 18
`
`1.
`
`The Claimed GUI Features Were the Inventive
`Contribution .......................................................................................... 20
`
`A New GUI Is New Technology .................................................................. 22
`
`The Current 101 Framework ......................................................................... 24
`
`The Claims Are Patent Eligible Because There Is No Preemption
`Concern ............................................................................................................. 25
`
`1.
`
`2.
`
`The Claims Fail to Impermissibly Preempt Because There
`Is Evidence that Other Ways to Practice the Abstract Idea
`Using a Computer Exist ...................................................................... 26
`
`TT’s Prior Patent’s Disclose Non-Preempted Ways of
`Repositioning Market Information ................................................... 27
`
`F.
`
`Under a Proper Application of the Alice Test, the Claims are
`Patent-Eligible under 35 U.S.C. 101. ............................................................ 28
`
`1.
`
`2.
`
`The Claims Are Not Directed To the Abstract Idea
`Adopted In the Institution Decision ................................................. 28
`
`The Claims Recite An Inventive Concept Other Than An
`Abstract Idea. ........................................................................................ 30
`
`i
`
`
`
`I.
`
`II.
`
`
`
`
`
`Case No. CBM2014-00137
`
`G.
`
`The PTAB Should No Longer Adopt the Petition’s § 101 Analysis ....... 32
`
`1.
`
`2.
`
`3.
`
`There Is No Evidence That the Claims Recite a
`Conventional GUI or an Abstract Idea ............................................ 32
`
`Software Inventions Are Patentable Even If Performed On
`a Generic Computer ............................................................................ 33
`
`New Case Law Confirms That the Claims are Patent
`Eligible ................................................................................................... 36
`
`III. ALL PRIOR ART GROUNDS SHOULD BE DISMISSED
`BECAUSE THE TSE TRANSLATION FILED BY TD (EXHIBIT
`1008) SHOULD BE EXCLUDED OR GIVEN NO WEIGHT. ..................... 39
`
`A.
`
`B.
`
`C.
`
`D.
`
`The TSE Translation in Exhibit 1008 is Unreliable. .................................. 40
`
`At Least Pages 101-140 Should Be Excluded for Failing to
`Comply with 37 C.F.R. § 42.63(B). ............................................................... 41
`
`TD Failed to Show that the TSE Document is Prior Art. ........................ 46
`
`Because The TSE Translation Should Be Excluded Or Given No
`Weight, The Board Should Dismiss The Prior Art Grounds And
`Hold That The ’055 Patent Is Not Unpatentable Based On The
`Instituted Grounds. ......................................................................................... 48
`
`IV.
`
`THE TSE TRANSLATION FILED BY TD (EXHIBIT 1008) IS
`SUBSTANTIVELY INACCURATE AND SHOULD BE GIVEN NO
`WEIGHT, AND THE BOARD SHOULD DISMISS THE PRIOR
`ART GROUNDS. ....................................................................................................... 49
`
`V.
`
`CLAIMS 1, 3, 4, 6-15, AND 17-19 ARE PATENTABLE OVER TSE ........... 53
`
`A.
`
`TSE Does Not Disclose Or Suggest Adjusting Price Levels
`Displayed Along A Static Price Axis, as Required by Independent
`Claims 1 And 17, and their Dependent Claims. .......................................... 54
`
`1.
`
`2.
`
`Independent claims 1 and 17 require that the price levels be
`displayed along a static price axis before the adjustment. ............... 54
`
`TD points to a compressed method display in TSE, but
`this display includes no static price axis. ............................................ 54
`
`ii
`
`
`
`Case No. CBM2014-00137
`
`B.
`
`TSE Also Does Not Disclose Or Suggest Any “Reposition
`Command To Reposition The Static Price Axis When A
`Designated Price Is Within A Designated Number Of Price
`Levels From The Lowest Value Or The Highest Value Along The
`Static Price Axis,” As Required By Independent Claims 1 And 17,
`And Their Dependent Claims. ....................................................................... 56
`
`1.
`
`2.
`
`3.
`
`TD’s arguments regarding this limitation are based on a
`flawed translation of TSE. .................................................................. 56
`
`The correct translation of TSE reveals that TSE fails to
`disclose or suggest any “designated number of price levels
`from the lowest value or the highest value along the static
`price axis,” as required by independent claims 1 and 17. ............... 57
`
`The Board cannot rely on TD’s flawed translation to find
`any of the claims unpatentable over TSE. ........................................ 59
`
`C.
`
`TSE Also Does Not Disclose Or Suggest “Receiving A Second
`Reposition Command To Reposition The Static Price Axis When
`A Timer Expires,” as Required by Dependent Claims 13 And 18. ......... 59
`
`VI.
`
`CLAIMS 2 AND 5 ARE PATENTABLE OVER THE
`COMBINATION OF TSE AND GUTTERMAN. ............................................. 60
`
`VII. MR. RHO’S TESTIMONY SHOULD NOT BE GIVEN ANY
`WEIGHT BECAUSE HE WAS NEVER ONE OF ORDINARY
`SKILL IN THE ART. ................................................................................................ 61
`
`VIII. THE PTAB SHOULD DISMISS THE PROCEEDING BECAUSE IT
`LACKS JURISDICTION .......................................................................................... 64
`
`A.
`
`The Decision misapplied the technological invention test ........................ 67
`
`1.
`
`2.
`
`3.
`
`The claim limitations recite novel and nonobvious
`technology ............................................................................................. 67
`
`The claims recite a technological feature that is novel and
`nonobvious ............................................................................................ 68
`
`The claims solve technical problems with a technical
`solution .................................................................................................. 70
`
`IX.
`
`CONCLUSION........................................................................................................... 73
`
`iii
`
`
`
`
`I.
`
`INTRODUCTION
`
`Case No. CBM2014-00137
`
`The ’055 patent is a continuation-in-part of the ’132 patent, subject of
`
`CBM2014-00135, and builds upon the inventions disclosed in that patent, some of
`
`which are also claimed in U.S. Patent 6,766,304 (the “’304 patent”), and U.S. Patent
`
`7,676,411 (the “’411 patent”).1 The general field of art of this family of patents is the
`
`design and operation of graphical user interfaces (“GUIs”) used for electronic trading.
`
`See Ex. 2020, ’132 patent, Field of Invention, 1:11-18 (“Specifically, the invention
`
`provides a trader with a versatile and efficient tool for executing trades. It facilitates
`
`the display of and the rapid placement of trade orders …”).
`
`The claimed invention is directed to patent eligible subject matter–the technical
`
`features of an innovative GUI. TT’s claims are rooted in computer technology—
`
`particular features and functionality of a specialized GUI (i.e., a graphical device/tool)
`
`—and are eligible under both steps of the two-part test set forth in Alice. First,
`
`because the claimed technical features are directed to a specific tool, the claimed
`
`invention does not preempt TD’s purported abstract idea of “repositioning market
`
`information on a graphical user interface.” Indeed, there are many ways of executing
`
`the purported abstract idea without utilizing the claimed invention. As such, the
`
`claimed invention is not directed to an abstract idea. Second, the claimed elements,
`
`
`1 The ’304 and ’411 patents are the subject of CBM2014-00136 (not instituted) and
`
`CBM2014-0133, respectively (also filed by TD).
`
`
`
`
`
`
`
`Case No. CBM2014-00137
`
`either individually or as a combination, ensure that the claims in practice amount to
`
`significantly more than a patent on simply the purported abstract idea. As such, the
`
`claimed invention sets forth the inventive concept to satisfy the second prong of the
`
`two-part Alice test.
`
`Indeed, a district court recently reached the same conclusion with regards to
`
`the claims of the ’132 patent that, while different in scope, also relate to solving
`
`problems of prior art GUIs. The Court found the claims of the ’132 patent eligible
`
`under both prongs of the Alice framework because the claims are not directed to an
`
`abstract idea and, even if they were, the claims recite an inventive concept that ensures
`
`that the patent is directed to more than the abstract idea itself. The district court
`
`found TT’s claims not directed to an “abstract idea,” but technological in nature,
`
`“solv[ing] problems of prior graphical user interface devices (GUIs), in the context of
`
`computerized trading, relating to speed, accuracy and usability.” Ex. 2200, Trading
`
`Techs. Int’l, Inc. v. CQG, 05-cv-4811 (N.D. Ill. Feb. 24, 2015) (Dkt. 1073). The district
`
`court held that TT’s claims are rooted in computer technology—particular features
`
`and functionality of a specialized GUI (i.e., a graphical device/tool) that happens to
`
`be used for placing trade orders and displaying market information. Id. at 5-7. As
`
`such, the claims here have no issues of eligibility under § 101.
`
`Moreover, because the claimed technology improves prior technology by
`
`“solv[ing] problems of prior [GUIs], in the context of computerized trading, relating
`
`2
`
`
`
`Case No. CBM2014-00137
`
`to speed, accuracy and usability,” there is no standing to challenge the patent under
`
`AIA Section 18. Id. at 6.
`
`Finally, TD’s effort to invalidate TT’s claims under 35 U.S.C. § 103 relies on a
`
`translation of a foreign language document (TSE) that should be excluded or given no
`
`weight because it is unreliable, fails to comply with the Board’s rules, and has not been
`
`shown to be prior art. Indeed, the translation is rife with inaccuracies resulting from
`
`what TD’s translators characterized as a “rush” job and the translators’ unfamiliarity
`
`with the subject matter of the underlying document. In addition, a district court jury
`
`previously determined that TSE is not prior art as of March 2, 2000, the ’055 patent’s
`
`earliest priority date. For all of these reasons and because TD’s alleged prior art fails
`
`to disclose or suggest multiple features of every claim, the PTAB should reject TD’s
`
`grounds of unpatentability under 35 U.S.C. §§ 101 and 103.
`
`II.
`
`THE CLAIMS ARE DIRECTED TO STATUTORY SUBJECT
`MATTER IN SATISFACTION OF 35 U.S.C. § 101.
`
`A.
`
`The Patented Invention Solved Technical Problems with Prior
`GUIs
`
`The claims are directed to patentable subject matter in the form of technical
`
`features of an innovative GUI tool. The inventors identified several problems
`
`(explained in detail below) with GUIs embodying the ’132, ’304, and ’411 patents and
`
`redesigned the GUIs embodying those patents to solve those problems. Although
`
`inventiveness is not required to pass muster under § 101, the inventiveness in all of
`
`the claims rests upon the combination of particular features of a GUI tool, not
`
`3
`
`
`
`Case No. CBM2014-00137
`
`practicing a method of doing business or data processing. While the claimed tool
`
`could be used to implement trading strategies (e.g., buy low/sell high), the claims are
`
`not directed to any trading strategy. Instead, the record is clear that the claims are
`
`directed to a specific improvement to GUIs used to conduct a trade on a computer.
`
`These types of improvements are patent eligible under 35 U.S.C. § 101.
`
`1.
`
`The Prior GUI and Associated Problems
`
`The claimed technical features of the GUI tool in the ’132, ’304, and ’411
`
`patents solved technical problems with the prior art (relating to, among other things,
`
`speed, accuracy, efficiency and precision) with a technical solution—by combining
`
`structural and functional features of a graphical tool in a new way. After a period of
`
`initial skepticism, the MD Trader product, which embodied the claims of the ’132,
`
`’304, and ’411 patents, became a huge commercial success (Ex. 2007, slide 34) and
`
`received widespread industry praise (Ex. 2010, ¶ 32 ). The technology received many
`
`accolades from experienced people in the industry. Id.
`
`However, like most breakthrough technologies, this new technology also
`
`brought about several new, technological problems created by the inventions
`
`disclosed in the ’132, ’304, and ’411 patents. For example, the GUI tool disclosed in
`
`the ’132, ’304, and ’411 patents provided bid/ask indicators that moved relative to a
`
`price axis in response to market changes. See, e.g., Ex. 1001, 9:12-16 (“[t]he inside
`
`market and market depth [then] ascend and descend as prices in the market increase
`
`and decrease. FIG. 4 shows a screen displaying the same market as that of FIG. 3, but
`
`4
`
`
`
`Case No. CBM2014-00137
`
`at a later interval where the inside market, cells 400, has risen three ticks.”). But the
`
`indicators in the GUI moved to what some users viewed as undesired locations
`
`relative to the price axis and in some instances off the price axis completely. See, e.g.,
`
`Ex. 1001, 9:21-26 (“As the market ascends or descends the price column, the inside
`
`market, working orders, last traded price and/or quantity, or any other item that may
`
`be of interest might go above or below the price column displayed on a trader's
`
`screen. Usually a trader will want to be able to see the inside market to assess future
`
`trades.”).
`
`As described in the ’055 patent, this technical problem was of particular interest
`
`during volatile markets—for example, when market information was changing rapidly.
`
`Ex. 1001, 26:23-35. Volatile markets created a scenario where the bid/ask indicators
`
`could potentially keep moving off the display, decreasing the “likelihood of entering
`
`quantities and having those quantities filled at desirable prices.” Ex. 1001, 26:30-35.
`
`This creates a speed problem. Furthermore, usability also becomes a problem because,
`
`if the indicators were located off the price axis, the GUI tool did not convey the state
`
`of the market precisely or efficiently. Ex. 1001, 9:25. (“Usually a trader will want to be
`
`able to see the inside market to assess future trades. The system addresses this
`
`problem with a positioning feature.”).
`
`5
`
`
`
`Case No. CBM2014-00137
`
`2.
`
`The Claimed Solution to the Problem: A New GUI That
`Improved Speed and Usability
`
`To address the above problems, the inventors conceived the design of a novel
`
`and non-obvious GUI tool (ultimately covered by the claims of the patent) that
`
`improved upon the speed and accuracy of the prior art. Specifically, the novel solution
`
`lies in specific structural and functional features of a GUI tool. In particular, the
`
`claims recite a combination of technical GUI features, including adjusting price levels
`
`of a static price axis and automatic re-positioning of the price axis based on bid/ask
`
`indicators that move within a predetermined distance from the top or bottom of the
`
`displayed price axis. These structural and functional features of claim 1 of the ’055
`
`patent that provide a solution to the convention GUI problems are depicted in the
`
`chart below (which uses screenshots of TT’s MD Trader product to illustrate the
`
`claims):
`
`
`
`
`
`6
`
`
`
`Case No. CBM2014-00137
`
`
`
`Claim Elements
`
`Graphical User Interface Elements
`
`Static
`price axis
`on a
`graphical
`user
`interface
`
`7
`
`A method for
`
`
`
`repositioning a static
`
`price axis on a graphical
`
`user interface for
`
`displaying market
`
`information of a
`
`commodity being traded
`
`at an electronic
`
`exchange, the method
`
`comprising:
`
`
`
`
`
`receiving market
`
`information relating to a
`
`commodity from an
`
`electronic exchange via
`
`a computing device, the
`
`market information
`
`comprising an inside
`
`market with a current
`
`highest bid price and a
`
`current lowest ask price
`
`for the commodity;
`
`displaying a first
`
`plurality of price levels
`
`along a static price axis
`
`on a graphical user
`
`interface of a display
`
`device associated with
`
`the computing device,
`
`where the first plurality
`
`of price levels range
`
`Case No. CBM2014-00137
`
`First plurality of price levels along a static
`price axis ranging from a lowest value to a
`highest value
`
`Current
`highest
`bid price
`
`Current
`lowest ask
`price
`
`
`
`8
`
`
`
`from a lowest value to a
`
`highest value along the
`
`static price axis;
`
`in response to an input
`
`command received via
`
`an input device
`
`associated with the
`
`computing device,
`
`adjusting the first
`
`plurality price levels
`
`among a range of price
`
`levels to an adjusted
`
`plurality of price levels
`
`including the first
`
`plurality of price levels
`
`Case No. CBM2014-00137
`
`Static price
`axis at T1
`
`Input device
`used to
`expand price
`levels (e.g.,
`from 19 (at
`T1) to 25 (at
`T2))
`
`Static price
`axis at T2
`
`9
`
`
`
`Case No. CBM2014-00137
`
`Static price axis
`
`Highest value
`along the static
`price axis
`
`Ask display
`region
`comprising a
`plurality of
`locations
`
`Lowest value
`along the static
`price axis
`
`
`displaying a bid and ask
`
`display region on the
`
`graphical user interface,
`
`the bid and ask display
`
`region comprising 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, and
`
`wherein a number of
`
`the plurality of locations
`
`changes according to
`
`adjusting the first
`
`plurality of price levels;
`
`Bid display
`region
`comprising
`a plurality
`of locations
`
`10
`
`
`
`Case No. CBM2014-00137
`
`Static price axis
`
`FIG. 3 and 4
`of the ’055
`patent show
`ascending
`and
`descending
`
`
`
`displaying a first
`
`indicator representing a
`
`quantity associated with
`
`the current highest bid
`
`price at a first location
`
`in the plurality of
`
`locations of the bid and
`
`ask display region,
`
`wherein the first
`
`indicator ascends or
`
`descends the static price
`
`axis as changes in the
`
`current highest bid price
`
`occur as a result of each
`
`of the plurality of price
`
`levels along the static
`
`price axis not changing
`
`positions on the
`
`graphical user interface
`
`unless a reposition
`
`First
`indicator
`representing
`a quantity
`
`11
`
`
`
`command is received;
`
`displaying a second
`
`indicator representing a
`
`quantity associated with
`
`the current lowest ask
`
`price at a second
`
`location in the plurality
`
`of locations of the bid
`
`and ask display region,
`
`wherein the second
`
`indicator ascends or
`
`descends the static price
`
`axis as changes in the
`
`current lowest ask price
`
`occur as a result of each
`
`of the plurality of price
`
`levels along the static
`
`price axis not changing
`
`positions on the
`
`graphical user interface
`
`Case No. CBM2014-00137
`
`Static price axis
`
`Second
`indicator
`representing
`a quantity
`
`FIG. 3 and 4 of
`the ’055 show
`Ascending and
`Descending
`
`
`
`12
`
`
`
`Case No. CBM2014-00137
`
`Receiving
`reposition
`command when
`designated price
`(e.g., LTP) within
`designated number
`of price levels (e.g.,
`3 levels) from
`highest value (e.g.,
`2003.75)
`
`FIG. 16B of the ’055
`patent shows user
`setting
`predetermined price
`levels
`
`
`
`13
`
`unless the reposition
`
`command is received;
`
`
`
`receiving the reposition
`
`command to reposition
`
`the static price axis
`
`when a designated price
`
`is within a designated
`
`number of price levels
`
`from the lowest value or
`
`the highest value along
`
`the static price axis; and
`
`
`
`Case No. CBM2014-00137
`
`responsive to receiving
`
`the reposition
`
`command, automatically
`
`repositioning the static
`
`price axis on the
`
`graphical user interface
`
`such that a current
`
`inside market price is
`
`displayed at a new
`
`desired location.
`
`Repositioning the
`static price axis
`from T1 to T2
`
`
`
`Current
`inside
`market price
`at T1
`
`Inside
`
`market price
`at new
`desired
`location at
`T2
`
`As explained in the patent, the above claimed combination of GUI features
`
`provides a tool that solves the problem with prior GUIs. See, e.g., Ex. 1001, 25:4-10.
`
`The novel tool uses a particular type of automatic re-positioning of the price axis
`
`functionality (triggered by a designated price coming within a designated number of
`
`price levels from the lowest value or the highest value along the static price axis)
`
`combined with other claimed structural and functional features of a GUI tool. See,
`
`e.g., id., claim 1. For example, the patent discloses that “[a] trader may use automatic
`
`positioning to always have a visual reference of where the market is trading.” Id.,
`
`26:30-31. The patent also explains that the prior art problem of indicators that move
`
`to undesired locations and in certain situations off the price axis all together, is
`
`14
`
`
`
`Case No. CBM2014-00137
`
`addressed by the claimed combination due to the “track[ing]” nature of the re-
`
`positioning tool. Id., 25:4-10 (“the trading application tracks the market’s activity by
`
`automatically centering, for example, the inside market or the Last Traded Price
`
`(“LTP”) on the display with respect to a static axis or scale of prices.”) The patent
`
`shows how a user can select the number of price levels away from the top/bottom to
`
`be a trigger for the claimed automatic re-positioning command in FIG. 16B.
`
`This tracking uses GUI technology to trap the indicators of interest in a desired
`
`region and limit their potential movement. In particular, in the claimed technology,
`
`
`
`15
`
`
`
`Case No. CBM2014-00137
`
`the indicators will be re-positioned to a desired location when they are about to enter
`
`into an undesired location or region. Id., claim 1. And the Federal Circuit recognized
`
`that that ’055 patent disclosed this solution. See Trading Techs. Int’l, Inc. v. Open E Cry,
`
`LLC, 728 F.3d 1309, 1316 (Federal Circuit recognizing that the specification
`
`specifically sets forth “A trader may use automatic positioning to always have a visual
`
`reference of where the market is trading.”).
`
`This solution was claimed in the combination of the “adjusting” and
`
`“repositioning” limitations, which were added to the claims to overcome a reference
`
`(TSE) that disclosed a different type of repositioning that was triggered based on
`
`market indicators moving a certain number of levels away from the center of the price
`
`column. Infra at Section V.B. The prior art type of repositioning caused a technical
`
`problem of re-positioning indicators of interest too early or too late if the number of
`
`price levels of the displayed price axis was adjusted. As a result, the claims specifically
`
`recite adjusting the number of price levels of the price axis that are displayed. For
`
`example, claim 1 recites “in response to an input command received via an input
`
`device associated with the computing device, adjusting the first plurality [of] price
`
`levels among a range of price levels to an adjusted plurality of price levels including
`
`the first plurality of price levels.” This part of the claim refers to “price levels”
`
`previously recited in the claim as a “first plurality of price levels along a static price
`
`axis on a graphical user interface . . . where the first plurality of price levels range from
`
`a lowest value to a highest value along the static price axis.” Ex. 1001, 34:14-67. Thus,
`
`16
`
`
`
`Case No. CBM2014-00137
`
`the claimed combination of GUI features addressed technical problems with a prior
`
`art GUI tool experienced by some users. This combination was the examiner’s reason
`
`for finding novelty and non-obviousness. Infra at Section V.
`
`With respect to usability, the ability to track indicators and limit their
`
`movement in a desired region solved the prior art problem. In particular, the claimed
`
`technology was of particular benefit in volatile markets—i.e., those markets where
`
`market information was changing rapidly and the indicators moved relatively quickly.
`
`The ’055 patent describes these technological solutions as follows:
`
`As quantities are entered and filled in the market, the LTP
`and inside market change to indicate the price of the last
`filled quantity and the most recent best buy and sell prices.
`In a volatile market, a large number of quantities can be
`filled in a relatively short period of time, resulting in a
`continuous fluctuation of the LTP and inside market. The
`LTP and the inside market are two indicators that a trader
`may use to understand at what prices other traders find a
`commodity to be most desirable. A trader may use
`automatic positioning to always have a visual reference of
`where the market is trading, increasing the likelihood of
`entering quantities and having those quantities filled at
`desirable prices.
`
`Ex. 1001, 26:23-35.
`
`17
`
`
`
`Case No. CBM2014-00137
`
`Accordingly, the claims are directed to a technological solution (a new GUI
`
`design) that overcame a problem with prior technology (the old GUI design). Thus,
`
`the claims are directed to a technological improvement, not an abstract idea or a
`
`business process.
`
`B.
`
`The Claimed Features and Functionality of the Improved GUI Are
`An Inventive Concept, Not Conventional.
`
`Importantly, TD does not address the details of the claims. Rather, TD only
`
`generalizes the claims. Pet. 13-14. TD ignores the substantive elements of the body of
`
`the claims, which set forth detailed requirements for the structural and functional
`
`features of the claimed GUI tool instead of merely a generic, non-particular GUI.
`
`This results in a phantom claim that ignores inventive concepts that ensure that the
`
`claim is to more than an abstract idea.
`
`
`
`
`
`18
`
`
`
`Addressed Elements
`
`Resulting Phantom Claim
`
`Case No. CBM2014-00137
`
`
`
`
`
`The fact that the claims are directed to an improved GUI, rather than a generic
`
`GUI, shows that the claims are not directed to an abstract idea and recite an inventive
`
`concept beyond an abstract idea. The claims do not recite a generic GUI because all
`
`19
`
`
`
`Case No. CBM2014-00137
`
`claims of the ’055 patent recite the features of the improved GUI.2 Supra at Section
`
`II.A.2. None of the claims are merely directed to a method of “repositioning market
`
`information on a graphical user interface.” Instead, the novel and non-obvious
`
`elements of all of the claims are directed to the structure and makeup of a particular,
`
`improved GUI tool. A novel and non-obvious GUI is not conventional.
`
`As shown below, the combination of structural and functional GUI features is
`
`why the claims were allowed over the prior art. Further, the claims not only recite
`
`structural components, they also recite the make-up and placement of these features
`
`relative to each other. TD fails to address any of these claim elements, alone or in
`
`combination. For this reason alone, TD fails to meet its burden of proving the claims
`
`ineligible under § 101.
`
`1.
`
`The Claimed GUI Features Were the Inventive Contribution
`
`The PTAB has the benefit of numerous decisions confirming the nature of the
`
`invention was a specific, innovative GUI that improved prior GUIs—not trading
`
`using a GUI in the abstract. For example, the Federal Circuit summarized this patent’s
`
`parent as covering improved GUI software:
`
`The patents claim software. . . . The software’s graphical
`user interface (“GUI”) includes “a dynamic display for a
`plurality of bids and for a plurality of asks in the market for
`
`2 That the claims are written in method format is irrelevant. The method claims are
`
`directed to the inventive features of the GUI tool and require that they be used.
`
`20
`
`
`
`Case No. CBM2014-00137
`
`the commodity and a static display of prices corresponding
`to the plurality of bids and asks.” The claimed invention
`facilitates more accurate and efficient orders in this trading
`environment.
`
`Trading Techs. Inst’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1345 (Fed. Cir. 2010). And the
`
`district court in the CQG trial agreed. The Federal Circuit recognized that that ’055
`
`patent disclosed another improvement. Id. at 1316 (Federal Circuit recognizing that
`
`the specification specifically sets forth “A trader may use automatic positioning to
`
`always have a visual reference of where the market is trading.”). And the claims’
`
`specific way of re-positioning a static price axis and adjusting the number of price
`
`levels of the displayed price axis were the distinguishing features that resulted in
`
`allowance. See Ex. 1002, pp. 463-473 (RCE dated March 5, 2009 adding the adjusting
`
`the price levels along the static axis element) and pp. 486 (NOA dated May 20, 2009
`
`placing the case in condition for allowance). This is all that is needed to pass the § 101
`
`threshold. For example, under the Alice test, claims directed to an “improve[ment to]
`
`the functioning of the computer itself or effect an improvement in any other
`
`technology or technical field” are patent eligible. Alice, 135 S.Ct. 2351. Similarly, the
`
`Federal Circuit has applied Alice to find that when claims, “taken together as an
`
`ordered combination, . . . recite an invention that is not merely the routine or
`
`conventional use” of computers or the Internet, they pass the § 101 threshold. DDR
`
`Holdings, 773 F.3d at 1259.
`
`21
`
`
`
`Accordingly, the Courts and the PTO have confirmed that the claims are
`
`directed to an improvement to a GUI, which is all that is needed under the controlling
`
`Case No. CBM2014-00137
`
`law.
`
`C.
`
`A New GUI Is New Technology
`
`The subject matter of TT’s claims, GUIs, has long been recognized as a
`
`technological field. For example, NASA includes a Human Systems Integration
`
`Division3 that covers several “technical areas,” including the Human Computer
`
`Interaction (HCI) Group, described as:
`
`The Ames HCI Group contributes to the development of
`measurably better NASA software through careful
`application of HCI methods. We follow an iterative process
`that consists of user research, interaction design, and
`usability evaluation. It is commonly assumed that HCI is
`exclusively focused on the interface. We are focused on the
`users and their goals in order to build the right tool which
`means that we are focused on functionality as well as
`interface.
`
`Ex. 2012. Moreover, many colleges offer science degrees in human-computer
`
`interaction. Exs. 2013-2019. Furthermore, experts who have testified regarding the
`
`claimed inventions, including experts of TD’s co-defendants in the district court, have
`
`referred to the field of the invention as a technological field. Ex. 2202, PTX 6052-56.
`
`
`3 Ex. 2012.
`
`22
`
`
`
`Case No. CBM2014-00137
`
`The problems addressed by the claims are also technical because they relate to classic
`
`engineering problems of efficiency, precision and usability. Indeed, the design and
`
`function of a computer interface is often more important than the computer hardware
`
`used to provide it.
`
`The patent does not merely claim implementing a known business process or
`
`generally displaying information on a generic computer. Rather, it details features and
`
`functionality of a new GUI tool. Trading is merely the application of the new GUI
`
`tool, but not what the claims are about. Thus, the claims here are analogous to claims
`
`directed to an improved instrumen