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`Paper No. ____
` Filed: March 17, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`
`Petitioners
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`
`Patent Owner
`
`
`
`
`Case CBM2016-00032
`U.S. Patent No. 7,212,999
`
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`
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`PATENT OWNER’S ADDITIONAL SUBMISSIONS
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`Pursuant to the Board’s March 10, 2017 Order (Paper 35), Patent Owner
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`respectfully submits this additional submission addressing Trading Technologies
`
`International, Inc. v. CQG, Inc. et al. (“CQG”), No. 2016-1616, 2017 WL 192716
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`(Fed. Cir. Jan. 18, 2017).
`
`I.
`
`CQG Sets Forth The Proper § 101 Analysis for the ‘999 Patent
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`In TT v. CQG, the Federal Circuit considered and fully analyzed GUI claims
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`set forth in U.S. Patent No. 6,772,132 (“the ‘132 patent”) and U.S. Patent No.
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`6,677,304 (“the ‘304 patent”). CQG, 2017 WL 192716 at *4. The Federal Circuit
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`found eligible, under both steps of Alice, patents that claimed “a specific,
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`structured graphical user interface paired with a prescribed functionality directly
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`related to the graphical user interface’s structure that is addressed to and resolves a
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`specifically identified problem in the prior state of the art.” Id. at *3.
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`A. The ‘999 Patent is Not “Directed To” an Abstract Idea
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`In CQG, the Federal Circuit focused the analysis on the claim elements that
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`provided structure, make-up, and functionality and the improvement of these claim
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`elements over the prior systems. Id. As such, it would be improper for the Board to
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`ignore the structure, makeup, and functionality recited in the ‘999 patent and/or the
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`problem that the claimed invention solves under the first step of the Alice test.
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`1.
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`Structure, Makeup, and Functionality
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`Like the patents in CQG, the ‘999 claims are directed to the structure,
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`makeup, and functionality of a GUI tool and claim “a specific, structured graphical
`
`1
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`
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`user interface paired with a prescribed functionality directly related to the graphical
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`user interface’s structure.” CQG, 2017 WL 192716 at *3. A comparison of some
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`elements of claim 1 from the ‘304 patent (left) and ‘999 patent (right) are
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`represented below:
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`‘304 Patent
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`‘999 Patent
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`ask/bid indicators displayed on GUI at
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`offer/bid indicators displayed on GUI at
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`locations corresponding with a price
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`locations along a price level along a
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`level along a common static price axis
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`scaled axis of prices
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`displaying an order entry region with a
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`displaying order icons associated with a
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`plurality of locations for receiving
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`user’s own order for a particular
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`commands to send trade orders
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`quantity of the item
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`in response to selection of a particular
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`selecting order icon and moving it to a
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`location of the order entry region by a
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`location associated with a price level
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`single action setting a plurality of
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`along the scaled axis of prices, thereby
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`parameters and sending a trade order
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`specifying bid/offer type and a desired
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`price for an order
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`At step one, the Federal Circuit was careful to articulate what the claims are
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`directed to with enough specificity to ensure the step one inquiry is
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`meaningful. The above comparison shows that the level of specificity in ‘999
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`patent is nearly identical to the level of specificity in the ‘304 patent. Accordingly,
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`2
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`
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`the ‘999 patent includes the requisite level of specificity and the claimed elements
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`should not be overgeneralized or ignored. The Federal Circuit has found that
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`similar claim elements are meaningful and should be considered.
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`2.
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`Solves a Problem with Prior Systems
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`In CQG, the Federal Circuit relied on the fact that the ‘132 and ‘304 patents
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`solved an order entry problem with prior GUI systems. Id. at *2-4. Further, the
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`Federal Circuit found that “the claimed subject matter is directed to a specific
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`improvement to the way computers operate, for the claimed graphical user
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`interface method imparts a specific functionality to a trading system directed to a
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`specific implementation of a solution to a problem in the software arts.” Id. at *4
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`(internal quotations omitted). The improvements for the ‘999 patent in speed,
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`visualization, and usability (Ex. 1001, 1:59-62, 2:39-65, 6:6-64, 8:26-51, 10:9-32)
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`are akin to the ‘132 and ‘304 patents’ improvements in speed, accuracy, and
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`usability, and are likewise technological in nature. That is, in both instances, the
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`patents claim improved GUIs that provide for better user interaction—something
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`the Federal Circuit has found technological in character.
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`3.
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`Inventive Concept
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`In CQG, the combined claim elements provided “specific structure and
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`concordant functionality of the [GUI],” such that the claims recited an inventive
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`concept, e.g., displaying bid and offer indicators relative to a price axis and
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`3
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`
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`selecting and order icon and moving it to a location associated with a price level
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`along the scaled axis of prices to set a desired price for an order. See id. at *3. In
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`CQG, the Federal Circuit found that the recitation of a “static price axis” was
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`enough to provide an inventive concept. Id. The ’999 patent easily surpasses this
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`threshold with the recitation of a plurality of other claimed elements. POR at 13-
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`19. For instance, the claims of the ‘999 patent are specifically directed to
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`displaying an order icon indicating the user’s order, selecting that order icon, and
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`then moving (e.g., dragging) that order icon to a location associated with a price
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`levels along a price axis to send a trade order. This is an improvement in the
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`functioning of technology by enabling users to quickly identify and select their
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`orders (on a graphic user interface) and quickly and efficiently move them to new
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`locations along a price axis. Here, the claimed combination is unconventional and
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`not routine, and recites and inventive concept. POR at 24-26.
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`II. Board’s Prior Analysis
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` In CBM2015-00179, the Board distinguished CQG on the basis that the
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`“claims and specification before us are much broader” than the ‘132/’304 patents,
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`and concluded that that with respect to CQG, “the [Federal Circuit] implied that
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`even those narrower claims are on the line between patent eligibility and
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`ineligibility.” IBG LLC et al. v. Trading Technologies Int’l, Inc., CBM2015-00179,
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`Paper 141, p. 22 n.12 (P.T.A.B. Feb. 17, 2017).
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`4
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`
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`First, the Board’s CQG analysis is flawed because (1) it depended on dicta
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`that is not even directed to the ‘132 and ‘304 cases, (2) CQG found patent
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`eligibility under both parts of Alice, (3) CQG was decided promptly after oral
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`argument, (4) CQG was a unanimous decision, and (5) it was designated non-
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`precedential (meaning “does not add significantly to the body of law.” Fed. Cir. R.
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`32.1(b)). None of these indicates a close case “on the line between patent
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`eligibility and ineligibility” and it is clear the Court in CQG did not need the
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`additional understanding flowing from the other patentability criteria.
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` Secondly, CQG cannot be distinguished based on breadth of the claims from
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`the claims of the ‘999 patent because the ‘999 patent claims are in some respects
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`narrower than the claims of the ‘132 and ‘304 patents. For example, the claimed
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`invention of the ‘999 patent recites order icons that are able to be moved along a
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`price axis (a feature that is not encompassed in the ‘132 and ‘304 patents), while
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`including a specific structure and concordant functionality.
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`Finally, any assertion that the record and facts are different from the ‘132
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`and ‘304 patents is misguided. The analysis is still applicable and should be
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`applied here as the closest law on point. Any decision from the Federal Circuit is
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`likely to have different facts and records – yet the guidance is still informative.
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`5
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`
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`Respectfully submitted,
`
`MCDONNELL BOEHNEN HULBERT &
`BERGHOFF LLP
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`
`
`Date: March 17, 2017
`
`/Jennifer M. Kurcz/
`
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`
`Counsel for Patent Owner
`
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001
`
`
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`6
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
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`Owner’s Additional Submission was served on March 17, 2017, via email directed
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`to counsel of record for the Petitioners at the following:
`
`Robert E. Sokohl
`rsokohl-PTAB@skgf.com
`
`Lori A. Gordon
`lgordon-PTAB@skgf.com
`
`Richard M. Bemben
`rbemben-PTAB@skgf.com
`
`Donald R. Banowit
`dbanowit-PTAB@skgf.com
`
`John C. Phillips
`PTABINBOUND@fr.com
`
`PTAB@skgf.com
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`
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`Dated: March 17, 2017
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`By:
`
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`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner
`Reg. No. 65,398
`
`
`
`7
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`
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