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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`___________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`___________________
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`TRADSTATION GROUP INC., and
`TRADESTATION SECURITIES, INC.
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner
`___________________
`
`Case CBM2016-00032
`Patent 7,212,999 B2
`___________________
`
`
`
`PETITIONERS’ REPLY TO PATENT OWNER’S RESPONSE
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-145
`
`
`
`CBM2016-00032
`U.S. Patent No. 7,212,999
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`TABLE OF CONTENTS
`
`Introduction ...................................................................................................... 1
`
`The ’999 claims vs. the “conventional” Figure 2-type GUI............................ 1
`
`I.
`
`II.
`
`III. The ’999 patent claims a patent-ineligible abstract idea. ................................ 4
`
`A.
`
`Collecting and displaying market information so that a user (i.e., a
`trader) can place an order is an abstract idea. ....................................... 5
`1.
`Recent Federal Circuit decisions confirm that the ’999
`claims are ineligible. ................................................................... 9
`
`2.
`
`Petitioners are not required to prove that the claims preempt
`the abstract idea. ........................................................................14
`
`The ’999 claims lack an inventive concept. ........................................15
`B.
`Claim 35 is not patent-eligible because it covers signals....................18
`C.
`IV. CQG does not control this CBM. ..................................................................18
`
`A.
`
`The ’999 patent claims were not at issue in CQG and cannot be
`affected by its holding. ........................................................................19
`The PTO is not bound by the court’s denial of judgment as a
`matter of law based on a record devoid of evidence. ..........................20
`The CBMs’ records differ from the district court’s. ...........................21
`CQG’s abstract idea is different than those advanced in the CBMs. ..21
`The Board applies the preponderance of the evidence standard;
`Petitioners’ record satisfies this standard. ...........................................22
`The ’999 patent is CBM eligible. ..................................................................22
`
`B.
`
`C.
`D.
`E.
`
`V.
`
`VI. Thomas is not an objective expert; he is TT’s paid advocate. ......................24
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`CBM2016-00032
`U.S. Patent No. 7,212,999
`TABLE OF AUTHORITIES
`
`Cases
`
`Affinity Labs of Texas, LLC v. DIRECTV, LLC,
`2016 WL 5335501 (Fed. Cir. 2016) .............................................................. 12, 13
`
`
`Alice Corp. Pty. Ltd. v. CLS Bank Int’l,
`134 S. Ct. 2347 (2014).................................................................................. passim
`
`
`Amdocs v. Openet Telecom, Inc.,
`Appeal No. 2015-1180 (Fed. Cir. Nov. 1, 2016)........................................... 17, 18
`
`
`Apple, Inc. v. Ameranth, Inc.,
`Appeal Nos. 2015-1703, 2015-1704 (Fed. Cir. Nov. 29, 2016) ........... 7, 9, 10, 23
`
`
`Ariosa Diags. v. Sequenom, Inc.,
`778 F.3d 1371 (Fed. Cir. 2015) ............................................................................14
`
`
`Ass’n for Molecular Pathology v. Myriad Genetics, Inc.,
`133 S.Ct. 2107 (2013) ..........................................................................................17
`
`
`Ballard Med. Prods. v. Wright,
`821 F.2d 642 (Fed. Cir. 1987) ..............................................................................20
`
`
`DDR Holdings, LLC v. Hotels.com, L.P.,
`773 F.3d 1245 (Fed.Cir. 2014) .............................................................................10
`
`
`Electric Power Group, LLC, v. Alstom S.A.,
`830 F.3d 1350 (Fed. Cir. 2016) .................................................................... passim
`
`
`Enfish, LLC v. Microsoft Corp.,
`822 F.3d 1327 (Fed.Cir. 2016) ...................................................................... 11, 12
`
`
`Ex parte Mewherter,
`Appeal No. 2012-7692 (PTAB May 8, 2013) ......................................................18
`
`
`In re Trans Tex. Holdings Corp.,
`498 F.3d 1290 (Fed.Cir. 2007) .............................................................................19
`
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`U.S. Patent No. 7,212,999
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`Intellectual Ventures I LLC v. Capital One Bank (USA),
`792 F.3d 1363 (Fed. Cir. 2015) ..................................................................... 13, 14
`
`
`Interthinx, Inc. v. Corelogic Solutions, LLC,
`CBM2012-00007 (PTAB Jan. 30, 2014) ..............................................................19
`
`
`LendingTree LLC v. Zillow, Inc.,
`Appeal Nos. 2014-1435, 2014-1531, 2015-1186 (Fed. Cir. July 25, 2016) .......... 6
`
`
`McRO, Inc. v. Bandai Namco Games America, Inc.
`837 F.3d 1299 (Fed. Cir. 2016) ............................................................................12
`
`
`Mortgage Grader, Inc. v. First Choice Loan Servs.,
`811 F.3d 1314 (Fed. Cir. 2016) ..................................................................... 12, 13
`
`
`Parker v. Flook,
`437 U.S. 584 (1978) .............................................................................................13
`
`
`Pfizer, Inc. v. Lee,
`811 F.3d 466 (Fed. Cir. 2016) ..............................................................................23
`
`
`Symbol Tech’s, Inc. v. Lemelson Medical,
`277 F.3d 1361 (Fed.Cir. 2002) .............................................................................19
`
`
`Trading Techs. Int’l, Inc. v. CQG, Inc.,
`2015 WL 774655 (N.D. Ill. Feb. 24, 2015) ..........................................................21
`
`
`Trading Techs. Int’l, Inc. v. CQG, Inc.,
`2017 WL 192716 (Fed. Cir. Jan. 18, 2017) .................................................. passim
`
`
`Ultramercial, Inc. v. Hulu LLC,
`772 F.3d 709 (Fed. Cir. 2014) ................................................................. 13, 17, 20
`
`
`Unwired Planet, LLC v. Google, Inc.,
`841 F.3d 1376 (Fed. Cir. 2016) ............................................................................22
`
`
`WildTangent, Inc. v. Ultramercial, LLC,
`573 U.S. ––––, 134 S.Ct. 2870 (2014) .................................................................20
`
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`CBM2016-00032
`U.S. Patent No. 7,212,999
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`Statutes
`
`35 U.S.C. §101 ................................................................................................. passim
`
`Other Authorities
`
`77 Fed. Reg. 48,756 (Aug. 14, 2012).......................................................................23
`
`MPEP § 2106 ...........................................................................................................18
`
`Rules
`
`Fed.Cir. Rule 32.1(d) ...............................................................................................19
`
`Regulations
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`37 C.F.R. § 42.1(d) ..................................................................................................22
`
`37 C.F.R. 42.301(a) ..................................................................................................23
`
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`- iv -
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`CBM2016-00032
`U.S. Patent No. 7,212,999
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`I.
`
`Introduction
`The ’999 patent doesn’t recite patent-eligible subject matter under Alice and
`
`its progeny. It describes “the present invention” as a GUI that “presents [market]
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`information in an intuitive format, allowing the trader to make informed decisions
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`quickly.” (Ex.1001 (“’999 patent”), 2:39-41.) Its claims track this description,
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`reciting the abstract idea of collecting and displaying market data so that a user
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`(i.e., a trader) can place an order. The fact that the display is graphic (as opposed to
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`text based) and that method is performed on a computer doesn’t save the claims.
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`The display of market data and sending an order based on user input doesn’t
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`qualify as patent-eligible subject matter. This is confirmed under Alice step two
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`because the claims’ recitation of a conventional arrangement of data using
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`conventional components confers little if anything meaningful to the abstract idea.
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`II. The ’999 claims vs. the “conventional” Figure 2-type GUI
`As in the CBMs of its other patents, TT uses Figure 2 of US 6,772,132
`
`(Ex.2116) as a straw man: it asserts that Figure 2 represents what was
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`conventional, distinguishes over it, and ignores the rest of the prior art. Indeed,
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`Thomas (TT’s expert) testified that he considered only Figure 2-type GUIs and
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`order tickets in forming his opinions. (Ex.1045 (“Thomas Tr.”), 72:6-20.)
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`U.S. Patent No. 7,212,999
`The Board should consider all the art in the record. Regardless, comparing
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`the Figure 2-type GUI (reproduced below) with the claimed GUI (e.g., ’999 claim
`
`1) yields minor, non-inventive differences.
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`
`
`The Figure 2-type GUI “display[s] a plurality of bid [offer] indicators, each
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`corresponding to at least one bid [ask] for a quantity of the item.” Each cell in
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`column 202 (205) displays an alphanumeric indicator that corresponds to at least
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`one bid (one ask) for a quantity. (’132 patent, 5:20-25.) In the Figure 2-type GUI,
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`“each bid [offer] indicator at a location … corresponding to a price associated
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`with the at least one bid [offer].” Each bid (offer) indicator corresponds to a bid
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`(offer) price in column 203 (204). (Id.; Thomas Decl. ¶31.) Notably, Thomas
`
`testified that claim 1 requires displaying only two bids and two offers. (Thomas Tr.
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`89:21-91:14; 92:11-22.) Figure 2 above displays five bid and five offer indicators.
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`The Figure 2-type GUI “receiv[es] market information representing a new
`
`order to buy [sell] a quantity of the item for a specified price, and in response to
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`U.S. Patent No. 7,212,999
`the received market information, generating a bid indicator that corresponds to the
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`quantity of the item bid for and placing the bid indicator … corresponding to the
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`specified price of the bid [offer].” Thomas testified that “[t]he screen shown in
`
`Figure 2 is dynamic” and “the prices are constantly changing in response to
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`changes in the market.” (Thomas Decl. ¶32.) And regarding order entry, the ’999
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`patent claims order entry via selecting and moving a displayed order icon to a
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`location along the axis of prices—e.g., a drag-and-drop operation. Figure 2-type
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`GUIs “permitted single action order entry that consisted of a trader pre-setting a
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`default quantity and then clicking (e.g., using a single-click or a double-click) on a
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`dynamic screen to cause a trade order to be sent to the exchange for the pre-set
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`quantity.” (Ex.1011 (“Thomas Rep.”) ¶20; Thomas Tr. 78:17-79:1.)
`
`Comparing the conventional Figure 2-type GUI to the ’999 patent’s claimed
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`GUI yields two minor differences. First, the Figure 2-type GUI arguably doesn’t
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`display bids and offers along a “scaled axis of prices.” Second, the Figure 2-type
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`GUI accepts order entry via a point-and-click operation as opposed to the claimed
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`select-and-move (e.g., drag-and-drop) operation.
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`Even in isolation (i.e., without considering any prior art other than Figure 2),
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`these minor differences don’t approach the inventive. And when considered in the
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`context of the prior art, they are unequivocally routine and conventional.
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`Regarding the axis of prices, Thomas admitted that it was known to display bid and
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`U.S. Patent No. 7,212,999
`offer data vertically. (Thomas Decl. ¶33; Thomas Tr. 79:7-80:4.) And numerous
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`prior art references—e.g., TSE, Gutterman, Silverman, and Buist—display bids
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`and offers along a scaled axis of prices. (Ex.1016, 0107; Ex.1023, FIG. 2b;
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`Ex.1022, FIGS. 4-5; Ex.1050, FIG. 5A.) Regarding order entry, TT merely
`
`substituted point-and-click with drag-and-drop—i.e., one conventional GUI
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`operation for another. Cooper confirms that both point-and-click and drag-and-
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`drop were conventional at the time of the ’999 patent. (Ex.1029, 0215-16; see also
`
`Ex.1030)
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`Thus, the ’999 patent’s claimed GUI is little more than the Figure 2-type
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`GUI that TT admits is conventional.
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`III. The ’999 patent claims a patent-ineligible abstract idea.
`The ’999 patent doesn’t claim patent-eligible subject-matter. (Paper 1
`
`(“Petition”) 19-35; Paper 16 (“Decision”) 16-20.) TT asserts that the claims pass
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`Alice step one because they describe “the structure, make-up, and functionality” of
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`“a specific GUI” rather than an abstract idea. (Paper 24 (“POR”) 17.) It asserts that
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`the claims pass Alice step two because the claims recite an inventive concept:
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`selecting and moving an order icon to place an order. (Id., 24-26.) Both of TT’s
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`arguments fail.
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`U.S. Patent No. 7,212,999
`A. Collecting and displaying market information so that a user (i.e.,
`a trader) can place an order is an abstract idea.
`Alice step one looks at the claims’ “focus.” Electric Power Group, LLC, v.
`
`Alstom S.A., 830 F.3d 1350, 1353 (Fed.Cir. 2016). The ’999 claims’ focus is
`
`collecting and displaying market information so that a user (i.e., a trader) can place
`
`an order. (Decision 16-17; see Petition 22-25.) TT confirms this is the claims’
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`focus, characterizing the invention as an “intuitive interface for displaying market
`
`information and placing trades.” (POR 12.)
`
`TT incorrectly contends that the claims are not abstract because they recite
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`“a particular way to construct a specific GUI with specific structure, makeup, and
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`functionality.” (Id., 17.) First, the claims don’t recite how to construct a GUI. TT
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`admits as much: “the claims are to the functioning of [a] GUI tool, not to the
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`underlying computer by itself or to how instructions in software to provide a
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`particular interface of an application are translated by the computer to control the
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`individual pixels of a screen.” (POR 57 (emphasis added).) Thus, the claims are
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`not directed to how data is displayed; they are directed to where data is displayed.
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`Second, “structure, makeup, and functionality” amount to nothing more than
`
`the abstract idea. Thomas testified that the structure of claim 1 “is the pieces that
`
`make it up, such as bid indicators, offer indicators, order icons”—i.e., the
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`displayed market data. (Thomas Tr. 85:5-8.) He testified that the makeup of claim
`
`1 is “how they’re arranged. . . . the relationship between the pieces”—i.e., the
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`U.S. Patent No. 7,212,999
`arrangement of the displayed market data. (Id., 85:9-15.) And, he testified that the
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`functionality of claim 1 “is what it actually does.” (Id., 85:16-21.) For the claimed
`
`GUI, “what it actually does” is collect and display market data and permit a trader
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`to place an order. This is nothing new: TT admits that the inventors did not invent
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`“gathering market information, displaying it to a trader, and using the information
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`to facilitate trading a commodity.” (POR 57-58.)
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`TT accuses Petitioners of “overgeneralizing” the ’999 claims. (POR 7-8.)
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`However, the Federal Circuit routinely articulates a claim’s abstract idea in
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`succinct terms without explicitly giving effect to every limitation when evaluating
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`patent eligibility. See, e.g., LendingTree LLC v. Zillow, Inc., Appeal Nos. 2014-
`
`1435, 2014-1531, 2015-1186, slip op. at 9 (Fed.Cir. July 25, 2016) (reducing a
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`method claim of 11 steps (361 words) to a two-word abstract idea: “coordinating
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`loans”). And again, TT itself characterized the invention as an “intuitive interface
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`for displaying market information and placing trades.” (POR 12.)
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`TT also asserts the non sequitur that the “claimed invention provides a
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`technical improvement over the prior art GUIs because GUIs are technology.”1
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`1 Petitioners’ proposed POSITA considers the background technologies
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`disclosed in the ’999 specification as well as enablement of a GUI; it does not
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`support a conclusion that the claimed GUI is technology.
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`(POR 19-21.) Even if GUIs are technology—a broad proposition that Petitioners
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`don’t challenge here—that doesn’t mean that the ’999 claims recite the critical,
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`technological improvement that is required to save them from abstraction. Indeed,
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`claims directed to GUIs have been found ineligible. See, e.g., Apple, Inc. v.
`
`Ameranth, Inc., Appeal Nos. 2015-1703, 2015-1704 (Fed.Cir. Nov. 29, 2016). The
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`§101 analysis focuses on the claims, not whether GUIs can be technology.
`
`Here, the claimed collection and display of market information and drag-
`
`and-drop order entry in no way make the computer run faster, more efficiently, or
`
`operate in any other advantageous manner. (Ex.1045, 57:18-58:13; Ex.1047, 248,
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`263-269.) The computer is used in its ordinary manner to implement the abstract
`
`idea. Thomas attempted to describe the alleged improvement, arguing that the ’999
`
`patent is more accurate because all of the market data is presented in one window.
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`(Thomas Tr. 57:20-59:4.) But when pointed to the claims, Thomas acknowledged
`
`that the claims don’t require one window; one window is merely the embodiment
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`shown in the figures. (Id., 60:5-19; see also id., 129:21-130:16.)
`
`TT further argues that its claims are not abstract because they don’t claim
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`“how a business process is performed or how a fundamental economic practice
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`(e.g., hedging or intermediated risk settlement) is performed.” (POR 17-18.) But
`
`independent claims 1 and 35’s sole purpose is displaying market data to a user to
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`facilitate the placement of an order on an exchange. To suggest otherwise falls flat.
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`The record demonstrates that displaying market data and exchange-based
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`trading are “fundamental economic practice[s] long prevalent in our system of
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`commerce,” and are abstract ideas similar to those courts have repeatedly held
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`ineligible. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2356 (2014).
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`Weiss, for example, describes a NYSE specialist’s book, which is a pencil and
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`paper approach to displaying bids and asks along a price axis. (Ex.1027, 44-46.)
`
`Weiss also teaches that the NYSE displayed this book on a CRT—demonstrating
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`how conventional it was to put traders’ pencil and paper plots on a display. (Id.,
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`46; see also Ex.1053, 9 (describing the NYSE’s “Electronic Display Book,” which
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`was designed to replace “specialist’s handwritten limit order book”).) Thomas
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`testified that exchange-based commodities trading began sometime in the 1600s
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`(Thomas Tr. 51:18-52:1) and is a fundamental economic practice (id., 55:1-10.)
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`(See also ’999 patent, 1:13 (“Trading pits are the lifeblood of a market
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`economy.”).) The migration from floor-based trading to electronic trading began in
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`the early 1970s. (Ex.1026, 1.) Thus, the claimed steps reflect abstract ideas about
`
`organizing information for use in fundamental economic practices.
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`In sum, although the claims are “lengthy,” they don’t go beyond the
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`collection and display of market data and the use of a conventional GUI operation
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`(e.g., drag-and-drop) to perform order entry. The claims “stat[e] those functions in
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`general terms, without limiting them to technical means for performing the
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`U.S. Patent No. 7,212,999
`functions that are arguably an advance over conventional computer and network
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`technology.” Electric Power, 830 F.3d at 1351. Reduced to their base, the claims
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`merely define a “desirable information-based result” and are not “limited to
`
`inventive means of achieving the result,” and thus fail under § 101. Id.
`
`1.
`
`Recent Federal Circuit decisions confirm that the ’999
`claims are ineligible.
`The Federal Circuit’s decisions in Apple and Electric Power compel the
`
`conclusion that the ’999 claims are ineligible.
`
`Apple dealt with a GUI that displayed a first menu having categories and
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`items, and software that generated a second menu from that first menu by allowing
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`categories and items to be selected. The Apple claims recited that the first menu
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`was “display[ed] in a window of said graphical user interface in a hierarchical tree
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`format.” Apple, slip op., 5. Thus, the Apple GUI recited a specific way (i.e.,
`
`detailed structure, makeup, and functionality) to construct a GUI. But the Court
`
`still found the claims ineligible. And, just like TT’s claims, the Court noted under
`
`its analysis of Alice step one that the claims did “not claim a particular way of
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`programming or designing the software to create menus that have these features,
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`but instead merely claim the resulting systems.” Id., 19. The Apple claims—again,
`
`just like TT’s claims—were “not directed to a specific improvement in the way
`
`computers operate.” Id.
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`In Apple, the Court found under Alice step two that the “invention merely
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`claims the addition of conventional components to well-known business practices.”
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`Id., 21. Again, the ’999 claims are directed to sending an order to an electronic
`
`exchange—a well-known business practice. The cornerstone of such practices is
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`that a trader must be provided market data (also well known) to place such an
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`order. It isn’t enough to point to conventional applications and say “do it on a
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`computer.” Alice 134 S.Ct. at 2358. Thus, the ’999 claims are not eligible for the
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`reasons articulated in Apple.
`
`In Electric Power, the claims-at-issue failed §101 because they did “not go
`
`beyond requiring the collection, analysis, and display of available information in a
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`particular field, stating those functions in general terms, without limiting them to
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`technical means for performing the functions that are arguably an advance over
`
`conventional computer and network technology.” Electric Power, 830 F.3d at
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`1351. The ’999 claims also recite collecting and displaying information without
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`limiting them to any technical means. (’999 patent, 4:34-36 (“The client terminals
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`104 are personal computers, terminals as part of a network, or any other computing
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`device.”).)
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`DDR and Enfish are inapposite. In both cases, the claimed methods sought to
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`solve problems concerning the inner workings of a computer or network. DDR
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`Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed.Cir. 2014) (“[T]he
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`claimed solution is necessarily rooted in computer technology in order to overcome
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`a problem specifically arising in the realm of computer networks.”); Enfish, LLC v.
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`Microsoft Corp., 822 F.3d 1327, 1339 (Fed.Cir. 2016) (claims directed to “a
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`specific type of data structure designed to improve the way a computer stores and
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`retrieves data in memory”). That isn’t the case with the ’999 patent, which merely
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`“presents [market] information in an intuitive format,” reducing the mental
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`processes required of a trader. (’999 patent, 2:39-41; Thomas Rep., ¶¶32-33.) See
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`also Electric Power, 830 F.3d at 1355 (mental processes’ “implicit exclusion from
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`§ 101 undergirds the information-based category of abstract ideas.”)
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`The ’999 patent’s solution—displaying market data along a price axis and
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`drag-and-drop order entry—isn’t rooted in technology and doesn’t impact the inner
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`workings of a computer or network. TT’s claims don’t recite a “GUI tool,” or even
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`a “GUI,” but rather a “method for facilitating the placement of an order for an item
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`and for displaying transactional information.” (’999 patent, 14:6-12.) Unlike
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`Enfish, where the claim in question invoked “a data storage and retrieval system,”
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`TT’s claims are directed to displaying market information in a particular format
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`and order entry.
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`And Petitioners don’t distinguish Enfish based simply on physicality. Rather,
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`the Enfish claims were found statutory because they were “directed to a specific
`
`improvement to the way computers operate.” Enfish, 822 F.3d at 1336. That isn’t
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`the case here. The ’999 claims don’t recite how to receive data or display it (other
`
`than along an axis of prices). They don’t require a new source of data or type of
`
`information, or new techniques for analyzing the data. Nor is there any type of
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`inventive programming. Merely displaying market information that is more
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`comprehensible to a trader doesn’t transform the abstract idea into a statutory
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`process. There is no technological advance.
`
`To be sure, the claimed computer isn’t improved in any manner other than
`
`providing an interface to trade items. But electronic trading requires collecting and
`
`displaying market data—these are fundamental aspects of all electronic trading.
`
`Merely displaying data to allow this fundamental economic process is insufficient
`
`to confer eligibility. Here, the claims’ focus is displaying data to facilitate a trade,
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`which is an abstract idea that invokes a computer as a tool. Id. This case isn’t about
`
`whether improvements to software are patentable, as in Enfish and McRO. It is
`
`about whether simply displaying data on a screen in a well-known format to
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`facilitate trading is patentable. The answer is no.
`
`TT also attempts to distinguish Mortgage Grader, Electric Power, and the
`
`Affinity Labs cases, arguing that those claimed GUIs were “result focused”—i.e.,
`
`not directed to a specific interface implementation. (POR 31-35.) TT argues that its
`
`“claims recite how the interface is constructed to provide a more intuitive interface,
`
`which improves the interface’s usability.” (Id., 35.) TT’s argument falls flat
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`- 12 -
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`CBM2016-00032
`U.S. Patent No. 7,212,999
`because the claims simply require two bids, two offers, an order icon, and an axis
`
`of prices. Even if the claims “add a degree of particularity”—reciting what data is
`
`displayed where—that doesn’t save them. See Ultramercial, Inc. v. Hulu LLC, 772
`
`F.3d 709, 715 (Fed.Cir. 2014) (“Although certain additional limitations … add a
`
`degree of particularity, the concept embodied by the majority of the limitations
`
`describes only the abstract idea ….”).
`
`And TT’s argument that the claims “recite how” the interface is constructed
`
`misses the point. The GUIs in Mortgage Grader, Electric Power, and the Affinity
`
`Labs cases could have been claimed in manner similar to TT’s claims—reciting
`
`what data is displayed where. But the outcomes wouldn’t have changed, otherwise
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`patent eligibility would “depend simply on the draftsman’s art.” Parker v. Flook,
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`437 U.S. 584, 593 (1978).
`
`TT also attempts to distinguish its GUI from Capital One’s ineligible GUI.
`
`(POR 35-57.) In Capital One, the relevant claim recited “an interactive interface”
`
`configured to dynamically display certain information (e.g., navigation data) to a
`
`user. Intellectual Ventures I LLC, et al. v. Capital One Bank (USA), et al., 792 F.3d
`
`1363, 1367 (Fed.Cir. 2015). Similarly, the ’999 patent claims a method for
`
`“displaying” information (i.e., bids/offers) to the user. Just like the ’999 patent,
`
`Capital One claimed a GUI that identified the information the interface was to
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`- 13 -
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`CBM2016-00032
`U.S. Patent No. 7,212,999
`display or functionality to include, but did not specify how the computer was to
`
`create the interface.
`
`Finally, the practice of providing market data to allow a trader to place an
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`order has been a practice for a long time in the context of trading of goods (e.g.,
`
`commodities or stocks) both before and after the advent of electronic trading. The
`
`’999 claims merely “spell out what it means to ‘apply it on a computer’ [which]
`
`cannot confer patent eligibility.” Capital One, 792 F.3d at 1370-71. In other words,
`
`the ’999 claims recitation of where data is displayed on a screen is insufficient to
`
`confer patentability. They still recite a generic interface for electronic trading.
`
`Thus, TT’s claims don’t recite a technological solution to a technological
`
`problem, and thus are abstract and patent-ineligible.
`
`2.
`
`Petitioners are not required to prove that the claims
`preempt the abstract idea.
`
`TT’s assertion that Petitioners must “prove that the claims attempt to
`
`preempt any and all generic ways of accomplishing the abstract idea” is without
`
`authority. (POR, 10.) “While preemption may signal patent ineligible subject
`
`matter, the absence of complete preemption doesn’t demonstrate patent eligibility.”
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`Ariosa Diags. v. Sequenom, Inc., 778 F.3d 1371, 1379 (Fed.Cir. 2015).
`
`“[Q]uestions on preemption are inherent in and resolved by the § 101 analysis” set
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`forth in Alice, id., which Petitioners applied in their Petition and in this Reply.
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`- 14 -
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`U.S. Patent No. 7,212,999
`The ’999 claims lack an inventive concept.
`B.
`The second-stage Alice inquiry looks more precisely at what the claim
`
`elements add—specifically, whether the claims recite an “inventive concept.”
`
`Electric Power, 830 F.3d at 1353. TT asserts that selecting and moving an icon to
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`place an order is not only inventive, it is “an unconventional and revolutionary
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`combination of features.” (POR 24.) It’s not.
`
`Selecting and moving an icon to perform a function was well known and
`
`conventional by the time of the ’999 patent. Cooper teaches that dragging an icon
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`“to a gizmo that represents a function … is arguably the most famous expression
`
`of direct manipulation” of a GUI. (Cooper, 0262 (emphasis added); see also id.,
`
`0259-79 (providing an entire chapter on drag-and-drop); Thomas Tr. 28:20-29:12;
`
`30:14-31:3 (acknowledging that the ’999 inventors did not invent drag-and-drop
`
`functionality).) The ’999 patent’s alleged inventive concept is nothing more than
`
`applying this “most famous,” well-known, and conventional GUI operation in the
`
`field of electronic trading. That isn’t enough to survive Alice step two.
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`Nor can TT argue that the claimed display of market data is inventive.
`
`According to Thomas, the Figure 2-type GUI was conventional at the time of the
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`’999 patent. (Thomas Decl. ¶¶30-33.) He described the Figure 2-style GUI as a
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`“dynamic screen” that displays the price and quantity associated with bids and asks
`
`in the market, and that updates as new market data is received. (Id.) It displays the
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`- 15 -
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`CBM2016-00032
`U.S. Patent No. 7,212,999
`same type of market data as the claimed GUI. (Thomas Tr. 77:10-78:5.) The
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`Figure 2-style GUI depicts the quantity of bids at five different price levels and the
`
`quantity of asks at five different price levels. By contrast, claim 1 requires
`
`displaying only two bids and two asks. (Thomas Tr. 89:21-91:14; 92:11-22.) Claim
`
`1’s bids and asks are displayed along an axis of prices, but Thomas also admitted
`
`that “dynamic screens that displayed the prices vertically” were known. (Id., 79:7-
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`80:4; Thomas Decl. ¶33.) And, displaying bids and asks along a price axis was
`
`known. (Ex.1016, 0107; Ex.1023, FIG. 2b; Ex.1022, FIGS. 4-5; Ex.1050, FIG. 5A;
`
`Ex.1052, 1). Thus, the claimed display of market data adds nothing over GUIs that
`
`were known and conventional.
`
`Additionally, the claims are far from specific in their recitation of features,
`
`broadly reciting collecting and displaying market data and order entry via a select
`
`and move operation. They lack any description how these steps are performed by
`
`the computer. Merely displaying and organizing data on a computer screen isn’t
`
`sufficient under Alice step two. Electric Power, 830 F.3d at 1355 (“displaying
`
`concurrent visualization” of two or more types of information is “insufficient to
`
`pass the test of an inventive concept.”). And “[m]erely selecting information, by
`
`content or source, for collection, analysis, and display” doesn’t render a claim
`
`patent eligible. Id. Likewise, “organizing information through mathematical
`
`correlations” and “manipulat[ing] existing information to generate additional
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`- 16 -
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`CBM2016-00032
`U.S. Patent No. 7,212,999
`information” that isn’t tied to any specific processor isn’t patent-eligible. Digitech
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`Image Tech. LLC v. Elec. for Imaging, Inc., 758 F.3d 1344, 1350-51 (Fed.Cir.
`
`2014).
`
`And even if the claims recited a novel, groundbreaking, or brilliant
`
`arrangement of elements (which they don’t), this may be insufficient to impart
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`patent eligibility. Ultramercial, 772 F.3d at 715 (“[T]he addition of merely novel
`
`or non-routine components to the claimed idea [doesn’t] neces
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