`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_____________
`
`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
`_____________
`
`CBM2016–00032
`Patent 7,212,999
`_____________
`
`
`PETITIONERS’ REPLY TO
`PATENT OWNER’S ADDITIONAL SUBMISSIONS
`
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313–1450
`
`
`
`
`
`
`
`CBM2016-00032 // Patent 7,212,999
`
`Patent Owner’s (“TT’s”) Additional Submissions (Paper 36) (“Subs.”)
`
`demonstrate why the CQG opinion should not be extended beyond the two patents
`
`and the anemic record at issue in that appeal. As TT acknowledges, CQG is non-
`
`precedential and “does not add significantly to the body of law.” (Subs., 5.) But
`
`other than quoting the opinion and making vague statements about GUIs—such as
`
`its tired “structure, make-up, and functionality” argument—TT cannot articulate a
`
`meaningful reason to apply CQG to the ’999 claims. Thus, the Board should reject
`
`TT’s arguments for at least the following reasons.
`
`First, TT’s Submissions fail to articulate a reason to apply CQG to the ’999
`
`claims. It attempts to compare certain elements of the ’304 claims (one of the pa-
`
`tents-at-issue in CQG) to the ’999 claims to demonstrate alleged similarities. (Id.,
`
`1-2.) But this comparison has the opposite effect—it demonstrates just how differ-
`
`ent the ’999 claims are from those at issue in CQG. The ’999 claims do not require
`
`a static price axis, which based on the scant evidentiary record in CQG, was found
`
`to be the inventive concept of the CQG patents. Nor do the ’999 claims require the
`
`same “single-action” order entry as the ’304 claims. TT fails to support its bald as-
`
`sertion that “the level of specificity in ‘999 patent is nearly identical to the level of
`
`specificity in the ‘304 patent.” (Id., 2.)
`
`TT further argues that the “improvements for the ‘999 patent [is] speed, vis-
`
`ualization and usability.” (Id., 3.) This generic statement is meaningless because it
`
`
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`- 1 -
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`
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`CBM2016-00032 // Patent 7,212,999
`
`has no tie to the claims. TT fails to explain which claim elements are an improve-
`
`ment, why they are an improvement, and what they are an improvement over. At
`
`best, the ’999 claims one way of visualizing market data—i.e., arranging it on a
`
`screen instead of the trader’s mind (’999, 1:20-24)—but not necessarily an im-
`
`proved way of visualizing the data. And, visualization alone is insufficient to be
`
`patentable in view of Alice and its progeny. See, e.g., Elec. Power Grp., LLC v. Al-
`
`stom S.A., 830 F.3d 1350, 1355 (Fed. Cir. 2016).
`
`TT’s “structure, make-up, and functionality” argument is misplaced because
`
`the alleged “structure” and “make-up” is nothing more than the arrangement of
`
`displayed market data, and the “function” is permitting a trader to place an order
`
`based on the displayed market data using drag-and-drop. Arranging data on a
`
`screen along with conventional GUI operations does not confer patent eligibility.
`
`Second, TT’s Submissions fail to address the compelling evidence in this
`
`record and Petitioners’ arguments in the Reply (Paper 29). For instance, TT asserts
`
`that dragging and dropping an icon to place an order is the ’999 patent’s inventive
`
`concept. (Subs., 4.) But the Reply and its supporting evidence (e.g., Cooper;
`
`Thomas deposition) demonstrate that drag-and-drop was a famously well-known
`
`(i.e., not inventive) GUI operation. (Reply, 15.)
`
`Third, this Panel’s § 101 analysis of the ’056 patent in CBM2015-00179 is
`
`correct and should guide its decision here. The ’056 claims are much more akin to
`
`
`
`- 2 -
`
`
`
`CBM2016-00032 // Patent 7,212,999
`
`the ’999 claims than those of the patents-at-issue in CQG. Indeed, the main distinc-
`
`tion between the ’056 and ’999 is the claimed technique for order entry—the ’056
`
`claiming the well-known point-and-click technique, while the ’999 claims the
`
`equally well-known drag-and-drop technique.
`
`Finally, the speed at which the Federal Circuit issued CQG and its decision
`
`to designate CQG nonprecedential cut against extending CQG’s holding to the
`
`’999. TT’s attempt to generalize CQG and apply it to other GUIs (i.e., the ’999
`
`claims) is in contention with its concession that CQG “does not add significantly to
`
`the body of law.” (Subs., 5.) CQG should not be applied beyond the specific facts
`
`of that appeal. And, CQG is currently being considered for en banc treatment. One
`
`reason CQG was likely designated non-precedential was the Court was well aware
`
`that it was provided a very limited record from the District Court, which did not
`
`lend itself to drafting an opinion that added significantly to § 101 jurisprudence.
`
`Nevertheless, CQG does provide useful guidance that the “threshold level of
`
`eligibility is often usefully explored by way of the substantive statutory criteria of
`
`patentability, for an invention that is new, useful and unobvious is more readily
`
`distinguished from the generalized knowledge that characterizes ineligible subject
`
`matter.” CQG at *4. This is in accord with cases like Ultramercial and Internet Pa-
`
`tents. The substantial prior art record herein supports a finding that the claims of
`
`the ’999 are unpatentable.
`
`
`
`- 3 -
`
`
`
`Date: March 24, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`CBM2016-00032 // Patent 7,212,999
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert Sokohl/
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`- 4 -
`
`
`
`CBM2016-00032 // Patent 7,212,999
`
`CERTIFICATE OF SERVICE (37 C.F.R. § 42.6(e))
`The undersigned hereby certifies that the foregoing PETITIONERS’ RE-
`
`PLY TO PATENT OWNER’S ADDITIONAL SUBMISSIONS was served
`
`electronically via e–mail on March 24, 2017, in its entirety on Attorneys for Patent
`
`Owner:
`
`Erika H. Arner, Joshua L. Goldberg, Kevin D. Rodkey,
`Rachel L. Emsley, Cory C. Bell
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`Erika.arner@finnegan.com; Joshua.goldberg@finnegan.com;
`Kevin.rodkey@finnegan.com; Rachel.emsley@finnegan.com;
`Cory.bell@finnegan.com; Trading–Tech–CBM@finnegan.com
`
`Steven F. Borsand, Jay Q. Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt–patent–cbm@tradingtechnologies.com;
`jay.knobloch@tradingtechnologies.com
`
`Michael D. Gannon, Leif R. Sigmond, Jr.,
`Jennifer M. Kurcz; Cole B. Richter
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com; sigmond@mbhb.com;
`kurcz@mbhb.com; richter@mbhb.com
`
`Respectfully submitted,
`STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`
`/Robert Sokohl/
`Robert E. Sokohl (Reg. No. 36,013)
`Lori A. Gordon (Reg. No. 50,633)
`Richard M. Bemben (Reg. No. 68,658)
`Attorneys for Petitioners
`
`Date: March 24, 2017
`
`1100 New York Avenue, N.W.
`Washington, D.C. 20005–3934
`(202) 371–2600
`
`
`
`
`
`
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