`Tel: 571-272-7822
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`
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`Paper 23
`Entered: November 9, 2016
`
`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.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2016-00032
`Patent 7,212,999 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`CBM2016-00032
`Patent 7,212,999 B2
`
`
`I. INTRODUCTION
`On August 30, 2016, IBG LLC, Interactive Brokers LLC,
`TradeStation Group, Inc., and TradeStation Securities, Inc. (collectively,
`“Petitioner”) filed a Request for Rehearing (Paper 19, “Req. Reh’g”) of our
`Decision (Paper 16, “Dec.”) denying inter partes review of Petitioner’s
`challenge to U.S. Patent No. 7,212,999 B2 (Ex. 1001, “the ’999 patent”)
`based upon grounds of obviousness based on a combination of TSE1,
`Schott2, and Subler3.4
`Petitioner’s Request alleges that we misapprehended or overlooked
`arguments and evidence, presented in the Petition, concerning the rationale
`to combine TSE, Schott, and Subler. Req. Reh’g 1–13. Petitioner argues
`that we overlooked that Petitioner’s evidence that a person of ordinary skill
`in the art (“POSITA”) would have made the proposed combination because
`(1) “swapping TSE’s well-known, click-based order entry for Subler’s
`equally well-known, drag-and-drop order entry since it is nothing more than
`a simple substitution that yields predictable results;” (2) “increasing the
`efficiency of order entry;” and (3) “decreasing the complexity of order
`entry.” Id. at 2. Petitioner also argues that we misapprehended the
`combination proposed in the Petition (Paper 1, “Pet.”). Req. Reh’g 11–13.
`
`
`
`1 TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1016) (“TSE”).
`2 U.S. Patent No. 5,619, 631 (issued Apr. 8, 1997) (Ex. 1019) (“Schott”).
`3 U.S. Patent No. 5,646,992 (issued July 8, 1997) (Ex. 1020) (“Subler”).
`4 Our Decision granted inter partes review with respect to the challenge
`based on unpatentability under 35 U.S.C. § 101.
`2
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`CBM2016-00032
`Patent 7,212,999 B2
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`II. STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`a panel will review the decision for an abuse of discretion.” Abuse of
`discretion occurs when a “decision was based on an erroneous conclusion of
`law or clearly erroneous factual findings, or . . . a clear error of judgment.”
`PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
`(Fed. Cir. 1988). In its request for rehearing, the dissatisfied party must
`identify the place in the record where it previously addressed each matter it
`submits for review. 37 C.F.R. § 42.71(d).
`
`
`III. ANALYSIS
`We did not misapprehend or overlook arguments and evidence
`
`concerning the rationale to combine TSE, Schott, and Subler. See Dec. 20–
`26. For example, our Decision indicates that the Petition asserts that a
`POSITA would have made the proposed combination because it “would
`have been an obvious design choice and nothing more than simple
`substitution of one known GUI technique (point-and-click) for another
`(drag-and-drop)” or it “is nothing more than combining prior art elements
`according to known method[s] to yield predictable and desirable results,
`such as increasing the efficiency and decreasing the complexity of order
`entry in TSE.” Dec. 25 (quoting Pet. 51–54). Our Decision also indicates
`that we considered the portions of the Petition that included the testimony of
`Mr. Roman5 and quoted portions of Cooper6 and Shneiderman7 to support
`
`5 Ex. 1012 (Declaration of Mr. Kendyl A. Roman).
`6 ALAN COOPER, ABOUT FACE: THE ESSENTIALS OF USER INTERFACE DESIGN
`(1st ed. 1995) (Ex. 1029).
`7 BEN SHNEIDERMAN, DESIGNING THE USER INTERFACE: STRATEGIES FOR
`3
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`CBM2016-00032
`Patent 7,212,999 B2
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`Petitioner’s proposed rationale. See, e.g., Dec. 25 (citing Pet. 52–53
`(quoting Cooper)).
`As indicated in our Decision, we considered Petitioner’s arguments
`
`and evidence but were not persuaded that a POSITA would have combined
`TSE, Schott, and Subler in the manner proposed in the Petition. The
`Decision states:
`We disagree that the proposed combination is nothing more than
`an obvious design choice or nothing more than combining prior
`art elements according to a known method to yield predictable
`and desirable results of increasing the efficiency and decreasing
`the complexity of order entry. As can be seen from the annotated
`figure above, the proposed combination results in a more
`complex order entry system because it requires not merely the
`substitution of a point-and-click technique for a drag-and-drop
`technique but the addition of a window, such as Subler’s Viewer
`window 334, having the order icons to drag-and-drop.
`Dec. 25 (referring to a figure from page 49 of the Petition, reproduced on
`page 24 in the Decision). Petitioner effectively disagrees with our Decision,
`which is not an appropriate basis for rehearing.
`
`In addition, Petitioner argues that we misapprehended the
`combination proposed in the Petition. According to Petitioner, the Petition
`“never suggests ‘[u]sing the aggregate quantity of orders in the market place
`as the order icons, which are dragged-and-dropped onto the Board/Quotation
`Screen to place an order.’” Req. Reh’g 11 (alteration in original) (quoting
`Dec. 26).
`
`Petitioner is correct that the Petition does not suggest dragging and
`dropping the aggregate quantity of order number displayed on TSE’s
`
`
`EFFECTIVE HUMAN-COMPUTER INTERACTION (3d ed. 1998) (Ex. 1030).
`
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`4
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`CBM2016-00032
`Patent 7,212,999 B2
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`Board/Quotation Screen to place an order, when addressing the claimed
`selecting and moving step. See Pet. 46–54. The Petition suggests modifying
`TSE so that a user can select a quantity indicator, such as “5,” from a
`window of quantity indicators and move it with a pointer of a mouse to a
`location associated with a price in column 11 of the Board/Quotation Screen
`of TSE to place an order. See id. Our Decision recognizes this. See Dec.
`24–25. The Decision points out that the Petition relies upon the aggregate
`quantity of order number displayed on TSE’s Board/Quotation Screen, for
`the claimed step of displaying an order icon. See Dec. 26 (citing Pet. 43–45
`(discussing the claimed displaying step)). The Decision points to this as a
`further example of why Petitioner’s combination appears to be based
`improperly on hindsight. See id.
`Accordingly, we are not persuaded of error in our Decision.
`
`
`IV. ORDER
`For the reasons given, it is
`ORDERED that Petitioner’s Request for Rehearing is denied.
`
`
`
`PETITIONER:
`
`
`Robert E. Sokohl
`Lori A. Gordon
`Richard M. Bemben
`STERNE, KESSLER, GOLDSTEIN & FOX, PLLC
`rsokohl-PTAB@skgf.com
`lgordon-PTAB@skgf.com
`rbemben-PTAB@skgf.com
`
`
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`5
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`CBM2016-00032
`Patent 7,212,999 B2
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`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@finngan.com
`rachel.emsley@finnegan.com
`cory.bell@finnegan.com
`
`
`Steven F. Borsand
`Jay Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`steve.borsand@tradingtechnologies.com
`jay.knobloch@tradingtechnologies.com
`
`Michael D. Gannon
`Leif R. Sigmond, Jr.
`Jennifer Kurcz
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`
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