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
`U.S. Patent 7,685,055
`___________________________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`
`
`via PTAB E2E
`Patent Trial and Appeal Board
`
`via Hand Delivery
`Director of the United States Patent and Trademark Office
`c/o Office of the General Counsel, 10B20
`Madison Building East
`600 Dulany Street
`Alexandria, VA 22313
`
`via CM/ECF
`United States Court of Appeals for the Federal Circuit
`
`
`
`
`________________
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`________________
`
`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioners,
`
`v.
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`___________________________________
`Case CBM2016-00009
`U.S. Patent 7,685,055
`___________________________________
`
`PATENT OWNER’S NOTICE OF APPEAL
`
`
`
`via PTAB E2E
`Patent Trial and Appeal Board
`
`via Hand Delivery
`Director of the United States Patent and Trademark Office
`c/o Office of the General Counsel, 10B20
`Madison Building East
`600 Dulany Street
`Alexandria, VA 22313
`
`via CM/ECF
`United States Court of Appeals for the Federal Circuit
`
`
`
`
`
`Pursuant to 35 U.S.C. §§ 141 and 142, and 37 C.F.R. §§ 90.2 and 90.3,
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`Case CBM2016-00009
`U.S. Patent 7,685,055
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`
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`Patent Owner, Trading Technologies International, Inc. (“TT”), hereby provides
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`notice that it appeals to the United States Court of Appeals for the Federal Circuit
`
`from the Final Written Decision (Paper 72) entered on April 26, 2017, and from all
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`underlying orders, decisions, rulings, institutions, and opinions regarding U.S.
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`Patent No. 7,685,055 (“the ’055 patent”) at issue in Covered Business Method No.
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`CBM2016-00009. This notice of appeal is timely filed because it is filed within 63
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`days of the August 24, 2017 decision (Paper 77) denying Petitioner’s request for
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`rehearing.1
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`In accordance with 37 C.F.R. § 90.2(a)(3)(ii), the issues on appeal include,
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`but may not be limited to:
`
`(1) the Board’s determination that it had jurisdiction to issue the Final
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`Written Decision based on the Board’s view that the ’055 patent is a covered
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`business method patent under § 18 of the American Invents Act;
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` (2) the Board’s determination that claims 1-19 are ineligible under 35
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`U.S.C. § 101;
`
`
`1 Although Paper 77 is titled “Decision Denying Patent Owner’s Request for
`Rehearing,” it is actually a decision denying Petitioner’s request for rehearing.
`(See Paper 77 at 1-2).
`
`
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`2
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`
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`(3) the Board’s claim constructions, failure to construe terms, and/or
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`Case CBM2016-00009
`U.S. Patent 7,685,055
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`
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`determination of the level of ordinary skill in the art at the time of the invention;
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` (4) the Board’s denial and dismissal as moot of Patent Owner’s motion to
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`exclude evidence;
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`(5) the unconstitutionality of the Transitional Program for Covered Business
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`Method Patents and Covered Business Method Review (AIA § 18) under Article
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`III, the Seventh Amendment, and the Fifth Amendment of the United States
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`Constitution; and
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`(6) any other findings or determinations supporting or related to the
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`aforementioned issues, as well as all other issues decided adversely to Patent
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`Owner in any order, decision, ruling, or opinion.
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`The remedy sought on appeal is reversal of the issues decided adversely to
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`Patent Owner in the Final Written Decision, including, but not limited to, the
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`Board’s conclusion that the ’055 patent is a CBM patent. See Secure Axcess, LLC
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`v. PNC Bank Nat’l Ass’n, 848 F.3d 1370, 1382 (Fed. Cir. 2017).
`
`Pursuant to 35 U.S.C. § 142 and 37 C.F.R. § 90.2(a), this Notice is being
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`filed with the Director of the United States Patent and Trademark Office, and a
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`copy of this Notice is being concurrently filed with the Patent Trial and Appeal
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`Board. In addition, a copy of this Notice along with the required docketing fees
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`3
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`are being filed with the Clerk’s Office for the United States Court of Appeals for
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`Case CBM2016-00009
`U.S. Patent 7,685,055
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`the Federal Circuit via CM/ECF.
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`Dated: October 26, 2017
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`
`
`
`Respectfully submitted,
`By: /Jennifer M. Kurcz/
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`Counsel for Patent Owner
`Trading Technologies International, Inc.
`Baker & Hostetler LLP
`191 North Wacker Drive
`Suite 3100
`Chicago, IL 60606-1901
`T 312.416.6200
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`4
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`CERTIFICATE OF SERVICE
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`Case CBM2016-00009
`U.S. Patent 7,685,055
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`I hereby certify that on this 26th day of October, 2017, a true and correct
`
`copy of the foregoing “PATENT OWNER’S NOTICE OF APPEAL” was Hand
`
`Delivered to:
`
`Director of the United States Patent and Trademark Office
`c/o Office of the General Counsel, 10B20
`Madison Building East, 600 Dulany Street
`Alexandria, VA 22313
`
`I also herby certify that on this 26th day of October, 2017, a true and correct
`
`copy of the foregoing “PATENT OWNER’S NOTICE OF APPEAL,” and the
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`filing fee, were filed with the Clerk’s Office of the United States Court of Appeals
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`for the Federal Circuit, via CM/ECF.
`
`I also hereby certify that a true and correct copy of the foregoing “PATENT
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`OWNER’S NOTICE OF APPEAL,” was served by electronic mail on this 26th day
`
`of October, 2017 on counsel of record for the Petitioners as follows:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`PTAB@skgf.com
`
`
`
`1
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`Date: October 26, 2017
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`Case CBM2016-00009
`U.S. Patent 7,685,055
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`/Jennifer M. Kurcz/
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`2
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`Trials@uspto.gov
`571.272.7822
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`
`
`
`
` Paper No. 72
` Entered: April 26, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`IBG LLC and INTERACTIVE BROKERS LLC,
`Petitioner,
`
`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.
`
`
`
`FINAL WRITTEN DECISION
`Covered Business Method Patent Review
`35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`CBM2016-00009
`Patent 7,685,055 B2
`
`
`I. INTRODUCTION
`A. Background
`IBG LLC and Interactive Brokers LLC1 (collectively, “Petitioner”)
`
`filed a Petition (Paper 5, “Pet.”) on October 23, 2015 that requests review
`under the transitional program for covered business method patents of U.S.
`Patent No. 7,685,055 B2 (Ex. 1001, “the ’055 patent”). Petitioner
`challenges the patentability of claims 1–19 (“the challenged claims”) of the
`’055 patent under 35 U.S.C. §§ 101 and 103. On April 28, 2016, we
`instituted a covered business method patent review on the following
`grounds:
`Ground Prior Art
`§ 101
`n/a
`§ 103
`TSE2
`§ 103
`TSE and Gutterman3
`§ 103
`TSE and Belden4
`
`Challenged Claims
`1–19
`1, 3, 4, 6–15 and 17–19
`2 and 5
`16
`
` Paper 20 (“Institution Decision” or “Inst. Dec.”).
`Thereafter, Trading Technologies International, Inc. (“Patent Owner”)
`filed a Patent Owner’s Response on July 21, 2016 (Paper 32, “PO. Resp.”)
`
`
`1 This proceeding was terminated with respect to CQG, INC. and CQGT,
`LLC and they are no longer petitioners in this proceeding. See Paper 16.
`2 Tokyo Stock Exchange Operation System Division, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1008).
`3 Gutterman et al., U.S. Patent No. 5,297,031 (issued Mar. 22, 1994) (Ex.
`1006).
`4 Belden et al., WO 90/11571 (published Oct. 4, 1990) (Ex. 1010).
`
`
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`2
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`and Petitioner filed a Reply (Paper 42, “Pet. Reply”) to Patent Owner’s
`Response.
`Patent Owner filed a Motion for Observations (Paper 52, “PO Mot.
`for Observations”) and Petitioner filed a response (Paper 54) to Patent
`Owner’s Motion for Observations.
`Petitioner filed a Motion to Exclude (Paper 49, “Pet. Mot. to
`Exclude”), and Patent Owner filed an Opposition (Paper 57) to Patent
`Owner’s Motion. Petitioner filed a Reply (Paper 60) in support of its
`Motion.
`Patent Owner filed a Motion to Exclude (Paper 59, “PO Mot. to
`Exclude”) and Petitioner filed an Opposition (Paper 55) to Patent Owner’s
`Motion. Patent Owner filed a Reply (Paper 61) in support of its Motion.
`We held a hearing of this case on January 6, 2017. Paper 70 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by a
`preponderance of the evidence that claims 1–19 of the ’055 patent are patent
`ineligible under 35 U.S.C. § 101.
`
`
`B. Related Matters
`The ’055 patent is the subject of numerous related U.S. district court
`
`proceedings. Pet. 2–3; Paper 8, 2–8; Paper 17, 1.
`
`The ’055 patent was the subject of a petition for covered business
`method patent review in TD Ameritrade Holding Corp. v. Trading
`Technologies International, Inc., CBM2014-00137 (PTAB). In CBM2014-
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`
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`3
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`CBM2016-00009
`Patent 7,685,055 B2
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`00137, covered business method patent review terminated prior to entry of a
`final written decision, due to settlement between the parties.
`
`
`C. The ’055 Patent
`The ’055 patent is titled “System and Method for Automatic Re-
`
`positioning of Market Information in a Graphical User Interface,” and issued
`March 23, 2010, from Application No. 11/417,547 filed May 3, 2006. Ex.
`1001, 1.
`
`The ’055 patent discloses that many exchanges throughout the world
`use electronic trading. Id. at 1:36–38. Exchange participants use specialized
`interactive trading screens to monitor positions on the exchange. See Id. at
`2:3–6. “The bids and asks in the market make up the market data and
`everyone logged on to trade can receive this information if the exchange
`provides it.” Id. at 2:27–28.
`The ’055 patent discloses a graphical user interface (“GUI”)
`displaying information related to a commodity and a method of
`automatically re-positioning the information. Id. at Abstract. The ’055
`patent’s Figure 16A is reproduced below.
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`Figure 16A depicts the GUI of the ’055 patent. The GUI includes a plurality
`of columns, including a static price axis, which includes a plurality of price
`values for the commodity, such as “102.60.” Id. at Fig. 16A; 7:67–8:18.
`Columns 1608 and 1610 are aligned with the static price axis and
`dynamically display buy (i.e., bid) quantities and sell (i.e., ask) quantities,
`respectively, for the corresponding price values of the static price axis. Id. at
`Fig. 16A; 26:10–11. Column 1602 displays the last traded price (“LTP”),
`and the inside market (i.e., the highest buy price and lowest sell price at
`which there is quantity currently in the market) is marked with inside market
`indicator 1606, which is a solid line spanning columns 1608 and 1610. Id. at
`Fig. 16A; 26:3–14.
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`The GUI can re-position a designated item of interest, such as the LTP
`or inside market indicator, in the display. Id. at 26:4–45. For example, if
`the LTP or inside market moves a designated number of cells away from the
`top or bottom of the display screen, the display, including the static price
`axis, is repositioned so that LTP or inside market is centered on the display.
`See Id. Manual re-positioning can also be used in conjunction with
`automatic re-positioning. Id. at 26:33–37.
`
`
`D. Illustrative Claim
`Claims 1 and 17 of the ’055 patent are independent. Claim 1 recites a
`
`method, and claim 17 recites a corresponding computer readable medium.
`Claim 1 of the ’055 patent is illustrative of the challenged claims and is
`reproduced below.
`1. A method for re-positioning 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 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;
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`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;
`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 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
`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
`responsive to receiving the reposition command,
`automatically re-positioning the static price axis on the
`graphical user interface such that a current inside market price
`is displayed at a new desired location.
`
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` II. ANALYSIS
`A. Claim Construction
`In a covered business method patent review, the Board interprets
`claim terms in an unexpired patent according to the broadest reasonable
`construction in light of the specification of the patent in which they appear.
`37 C.F.R. § 42.300(b); see Cuozzo Speed Techs. LLC v. Lee, 136 S. Ct.
`2131, 2144–46 (2016) (upholding the use of the broadest reasonable
`interpretation standard). Under that standard, and absent any special
`definitions, we give claim terms their ordinary and customary meaning, as
`they would be understood by one of ordinary skill in the art at the time of the
`invention. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir.
`2007). Any special definitions for claim terms must be set forth with
`reasonable clarity, deliberateness, and precision. In re Paulsen, 30 F.3d
`1475, 1480 (Fed. Cir. 1994).
`
`
`i. “static price axis”
` Petitioner argues that the ’055 patent defines “static price axis” as “a
`price column where prices ‘do not normally change positions unless a re-
`centering command is received.”’ Pet. 16–17 (citing Ex. 1001, 8:16–18; Ex.
`1003 ¶ 71).
`Patent Owner proposes two “clarifications” to this definition. PO
`Resp. 40–41. First, Patent Owner argues that “the construction requires that
`the price levels do not change positions unless a re-centering or
`repositioning command is received” to be consistent with the claim language
`itself. Id. at 40. Second, Patent Owner argues that “the construction should
`[not] be limited to a price column, but should refer to a reference line.” Id.
`
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`Additionally, Patent Owner argues that a price axis is “a reference line,
`against which bids/ask[s] are plotted, that does not skip price levels” and that
`“a price level is a location/area provided on the screen with which a price
`may be (but is not required to be) displayed.” Id. at 41 (citing Ex. 2169 ¶¶
`75–81).
`Upon consideration of the parties’ arguments and evidence, we are
`persuaded that the broadest reasonable construction, in light of the
`specification of the ’055 patent, of “static price axis” is a price column or
`reference line where prices do not normally change positions unless a re-
`centering or re-positioning command is received. This is consistent with the
`’055 patent, which states:
`It is to be understood that, in this context, static does not mean
`immovable, but rather means fixed in relation. For example,
`with a static price scale, the scale itself may be movable, but the
`prices represented remain fixed in relation to each other, subject
`to consolidation or expansion.
`Ex. 1001, 4:53–58. This also is consistent with the claim language, itself,
`which includes steps of receiving a re-positioning command and, in
`response, re-positions the static price axis. Ex. 1001, 34:60–67. We also are
`persuaded that a “static price axis” includes a reference line along which
`bids or asks are plotted. This is consistent with the ’055 patent disclosure of
`the static price axis and the plain meaning of the term. See Id. at 7:67–8:16,
`Ex. 2071, 4 (dictionary definition of “axis”).
`We, however, are not persuaded that the broadest reasonable
`interpretation requires a price axis that does not skip price levels and that
`price levels are locations/areas provided on the screen with which a price
`may be (but is not required to be) displayed. Patent Owner’s proposed
`
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`Patent 7,685,055 B2
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`clarification is inconsistent with the ’055 patent. The ’055 patent discloses
`that
`
`[t]he representative prices for the given commodity are shown in
`column 304 [(i.e., the price axis)], where the prices are static and
`increment in “ticks,” where a tick is the minimum change in a
`price value that is set by the exchange for each commodity. The
`prices can be displayed as ticks, as multiples of ticks or in any
`other fashion. . . . Other price display convention may
`alternatively be used, as long as the requisite price information is
`conveyed to the user.
`Ex. 1001, 7:67–8:9; see also Id. at 7:43–50 (disclosing that the static prices
`can be displayed in any matter and that just market depth levels or working
`orders can be displayed). The ’055 patent also discloses displaying
`indicators in only a portion of a cell because a price falls between prices in a
`static price scale. See Id. at 13:58–67, 17:65–18:2, 18:47–51, 29:25–37.
`We determine that the broadest reasonable interpretation in light of
`the specification of the ’055 patent of static price axis is a price column or
`reference line where prices do not normally change positions unless a re-
`centering or re-positioning command is received.
`
`
`ii. “computer readable medium”
`Claims 17–19 are directed to “[a] computer readable medium having
`
`computer-readable instructions thereon.” See Ex. 1001, 36:1–2. Petitioner
`contends that, when given the broadest reasonable interpretation, the
`“computer readable medium” of claims 17–19 encompasses transitory,
`propagating signals. Pet. 33–34 (citing In re Nuijten, 500 F.3d 1346, 1357
`(Fed. Cir. 2007)).
`
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`Patent Owner argues that it would be unreasonable to construe claims
`
`17–19 as encompassing signals per se. PO Resp. 25–26. First, Patent
`Owner argues that “the USPTO guidance relied upon” is directed to
`examination, which is pre-issuance, and these proceedings are post-issuance.
`Id. at 25. Patent Owner contends that “it would be unreasonable to adopt a
`construction that would have made a patent invalid at the time of issuance.”
`Id. Second, Patent Owner argues that intrinsic evidence in the prosecution
`history show that the claims are directed to non-transitory media and that
`this is consistent with the specification of the ’055 patent, which describes
`the relevant field as being interface software run on an end-user computer or
`terminal. Id. (citing Ex. 1002, 165, Ex. 1001, 2:1–6, 4:60–5:7).
`
`Upon consideration of the parties’ arguments and evidence, we are
`persuaded that the broadest reasonable construction, in light of the
`specification of the ’055 patent, of computer readable medium encompasses
`transitory, propagating signals. We are not persuaded by Patent Owner that
`this construction is inconsistent with the specification of the ’055 patent.
`We are not persuaded that, because the ’055 patent describes the software
`running on an end-user computer or terminal, the computer readable medium
`is limited to non-transitory media. As Petitioner points out, “[t]he
`specification of the ’055 patent neither defines nor provides examples of a
`computer-readable medium.” Pet. 33. It does not limit computer readable
`medium to non-transitory media or preclude transitory propagating signals
`per se. See Subject Matter Eligibility of Computer-Readable Media, 1351
`Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (“The broadest reasonable
`interpretation of a claim drawn to a computer readable medium . . . typically
`
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`covers forms of non-transitory tangible medium and transitory propagating
`signals per se . . . .”).
`
`Patent Owner argues that “the USPTO guidance relied upon” is
`directed to examination in a pre-issuance context and, thus, should not be
`relied upon in a post-issuance context. PO Resp. 25. It is not clear from
`Patent Owner’s argument to what USPTO guidance Patent Owner is
`referring as Patent Owner provided no citation to any USPTO guidance. See
`Id. In our Institution Decision, we cited Ex parte Mewherter, 107 USPQ2d
`1857, 1859–63 (PTAB May 8, 2013) (precedential). Inst. Dec. 25, n.7. Ex
`parte Mewherter refers to the guidance in Subject Matter Eligibility of
`Computer-Readable Media. Ex parte Mewherter, 107 USPQ2d at 1859.
`Inasmuch as Patent Owner’s argument is directed to Subject Matter
`Eligibility of Computer-Readable Media, Patent Owner’s argument is
`unpersuasive. Although the guidance provided in Subject Matter Eligibility
`of Computer-Readable Media is not binding upon the Board, Patent Owner
`provides no persuasive reason for the Board to depart from this guidance.
`Like in a pre-issuance context, during covered business method patent
`review, claims are given their broadest reasonable interpretation in light of
`the specification. 37 C.F.R. § 42.300(b); see Cuozzo Speed Tech., 136 S. Ct.
`at 2144–46.
`
`Further, we are not persuaded by Patent Owner that intrinsic evidence
`in the prosecution history shows that the claims are directed to non-
`transitory media. See PO Resp. 25. Patent Owner directs our attention to a
`statement made by the examiner in the prosecution history of the ’055 patent
`— “a computer readable medium (known in the computer art as a floppy
`disk, cd-rom, hard drive, zip drive, jazz drive etc.).” Id. (quoting Ex. 1002,
`
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`165). Contrary to Patent Owner’s argument, this statement does not limit
`computer readable medium to non-transitory media but allows for other
`types of media.
`
`We determine that the broadest reasonable interpretation of “computer
`readable medium having computer-readable instructions thereon,” in light of
`the specification of the ’055 patent, encompasses transitory, propagating
`signals.
`
`iii. Other Terms
`
`We do not need to construe any other claim terms for purposes of our
`decision. See, e.g., Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355,
`1361 (Fed. Cir. 2011) (“[C]laim terms need only be construed ‘to the extent
`necessary to resolve the controversy.’”) (citation omitted).
`
`
`B. Requirements for Covered Business Method Patent Review
`
`Section 18 of the AIA5 provides for the creation of a transitional
`program for reviewing covered business method patents. Section 18 limits
`review to persons or their privies who have been sued or charged with
`infringement of a “covered business method patent,” which does not include
`patents for “technological inventions.” AIA § 18(a)(1)(B), (d)(1); see
`37 C.F.R. § 42.302.
`In compliance with 37 C.F.R. § 42.302(a), Petitioner certifies that it
`has been sued for infringement of the ’055 patent. Pet. 3; see Paper 8, 3.
`
`
`5 Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
`
`
`13
`
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`CBM2016-00009
`Patent 7,685,055 B2
`
`
`
`i. “Method or Corresponding Apparatus for Performing Data Processing
`or Other Operations Used in the Practice, Administration or
`Management of a Financial Product or Service”
`The statute defines a “covered business method patent” as
`[a] patent that claims a method or corresponding apparatus for
`performing data processing or other operations used in the
`practice, administration, or management of a financial product or
`service.
`AIA § 18(d)(1); see 37 C.F.R. § 42.301(a). A covered business method
`patent can be broadly interpreted to encompass patents claiming activities
`that are financial in nature. Transitional Program for Covered Business
`Method Patents—Definitions of Covered Business Method Patent and
`Technological Invention, 77 Fed. Reg. 48734, 48735 (Aug. 14, 2012); Blue
`Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1338–41 (Fed. Cir. 2016)
`(determining that a patent was a covered business method patent because it
`claimed activities that are financial in nature); Unwired Planet, LLC v.
`Google, Inc., 841 F.3d 1376, n. 5 (Fed. Cir. 2016) (stating that “we endorsed
`the ‘financial in nature’ portion of the standard as consistent with the
`statutory definition of ‘covered business method patent’ in Blue Calypso”),
`Versata Development Group, Inc. v. SAP America, Inc., 793 F.3d 1306,
`1324–25 (Fed. Cir. 2015) (“[The statute] on its face covers a wide range of
`finance-related activities.”).
`A patent need have only one claim directed to a covered business
`method to be eligible for review. 77 Fed. Reg. at 48,736 (Response to
`Comment 8). We take claim 1 as representative.
`
`Petitioner contends that the ’055 patent is a covered business method
`patent because it claims a method or corresponding apparatus for performing
`
`
`
`14
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`CBM2016-00009
`Patent 7,685,055 B2
`
`data processing or other operations used in the practice, administration, or
`management of a financial product or service. Pet. 3–5. Petitioner argues
`that claims 1 and 17 are directed to a method and corresponding apparatus
`for displaying and re-positioning market data used for trading commodities,
`which is a financial activity. Id. at 4–5. Petitioner additionally argues that
`claim 16 claims a financial activity, because it recites sending a trade order
`to an electronic exchange. Id. Petitioner further argues that the ’055 patent
`discloses that it is directed to electronic trading, which is a financial activity.
`Id. (citing Ex. 1001, 1:29).
`
`Patent Owner disagrees. Patent Owner does not dispute that the
`claims of the ’055 patent “include financial terms” but disputes that the
`claims perform data processing or other operations, as required by the
`statute. PO Resp. 26–28. First, Patent Owner argues that “data processing”
`should be interpreted according to the definition of “data processing” found
`in the glossary for class 705 of the United States Patent Classification
`System, which is “[a] systematic operation on data in accordance with a set
`of rules which results in a significant change in the data.” Id. at 26–27
`(quoting Ex. 2121, 4). Patent Owner argues that the claims of the ’055
`patent are not directed to data processing under this definition because the
`claims are concerned with displaying information in a specific manner and
`not concerned with processing the information that is displayed. PO Resp.
`27. Patent Owner asserts that the claimed invention is not directed to a
`business method. Id. at 27–28. According to Patent Owner, the legislative
`history “makes clear that improvements to software tools or GUIs, even if
`used for trading or other financial activities, were intended to be outside the
`scope of CBM [review].” Id. at 34 (citing Ex. 2126, S5428, S5433 (157
`
`
`
`15
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`CBM2016-00009
`Patent 7,685,055 B2
`
`Cong. Rec. S5428 (daily ed. Sept. 8, 2011) (statements of Sens. Schumer
`and Durbin)).
`
`As an initial matter, Patent Owner’s arguments concerning the
`legislative history are not persuasive. Although the legislative history
`includes certain statements that certain novel software tools and graphical
`user interfaces that are used by the electronic trading industry worker are not
`the target of § 18 of the AIA (see Ex. 2126, S5428, S5433) the language of
`the AIA, as passed, does not include an exemption for user interfaces for
`commodities from covered business method patent review. Indeed, “the
`legislative debate concerning the scope of a CBM review includes
`statements from more than a single senator. It includes inconsistent views . .
`. .” Unwired Planet, 841 F.3d at 1381. For example, in contrast to the
`statements cited by Patent Owner, the legislative history also indicates that
`“selling and trading financial instruments and other securities” is intended to
`be in the scope of covered business method patent review. See Ex. 2126,
`S5432 (statements of Sen. Schumer). “[T]he legislative history cannot
`supplant the statutory definition actually adopted. . . . The authoritative
`statement of the Board’s authority to conduct a CBM review is the text of
`the statute.” Unwired Planet, 841 F.3d at 1381. Each claimed invention has
`to be evaluated individually to determine if it is eligible for a covered
`business method patent review. A determination of whether a patent is
`eligible for a covered business method patent review under the statute is
`made on a case-by-case basis. 37 C.F.R. § 42.301(b).
`Turning to the ’055 patent, we are persuaded by Petitioner that the
`’055 patent is a covered business method patent. According to the
`specification of the ’055 patent, “the present invention is directed to
`
`
`
`16
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`CBM2016-00009
`Patent 7,685,055 B2
`
`electronic trading” (Id. at 1:28) and, in particular, to repositioning market
`information in a GUI. (Id. at 3:3–5). The information relates to tradable
`objects, which are financial products, such as stocks, options, bonds, futures,
`currency, etc. Id. at 5:8–17. The ’055 patent discloses that the invention
`involves processing the information for display — “[t]he trading application
`. . . processes this information.” Ex. 1001, 6:26–30.
`The disclosed invention is reflected in claim 1 of the ’055 patent,
`which is directed to “[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.” Ex. 1001, 34:15–17. The claimed
`method recites steps of displaying market information received from an
`electronic exchange along a static price axis, adjusting the static price axis,
`and repositioning the static price axis. Id. at 34:19–67.
`Electronic trading is a financial service or activity. Tradable objects
`are financial products. A method of computing and displaying financial
`information for a tradable object on a graphical user interface for use in
`electronic trading is a method for performing data processing or other
`operations used in the practice, administration, or management of a financial
`product or service. We, thus, are persuaded by Petitioner that the ’055
`patent is a covered business method patent. See Pet. 4–5, Pet. Reply. 29–30.
`
`Patent Owner argues that the statute requires that the “data
`processing” cause a significant change in the data, and that data processing
`that merely displays the data, like the data processing disclosed in the ’055
`patent, is not significant. PO Resp. 26–27. Patent Owner’s argument is
`based upon the assumption that “data processing” in the statute is interpreted
`according to the definition of “data processing” found in the glossary for
`
`
`
`17
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`CBM2016-00009
`Patent 7,685,055 B2
`
`class 705 of the United States Patent Classification System. See Id. Patent
`
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