throbber
Trials@uspto.gov
`571.272.7822
`
` Paper No. 19
`Entered: December 2, 2014
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC., and TD
`AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2014-00133
`Patent No. 7,676,411 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`PHILIP J. HOFFMANN, Administrative Patent Judges.
`
`HOFFMANN, Administrative Patent Judge.
`
`DECISION
`Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`I. INTRODUCTION
`
`A. Background
`
`TD Ameritrade Holding Corp., TD Ameritrade, Inc., and TD
`
`Ameritrade Online Holdings Corp. (collectively, “Petitioner”) filed a
`
`Petition (Paper 1, “Pet.”) on May 19, 2014, which requests review under the
`
`
`
`1
`
`IBG LLC ET AL. - EXHIBIT 1008
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`

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`CBM2014-00133
`Patent 7,676,411 B2
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`transitional program for covered business method patents of U.S. Patent No.
`
`7,676,411 B2 (Ex. 1001, “the ’411 patent”). Trading Technologies
`
`International, Inc. (“Patent Owner”) filed a Preliminary Response (Paper 18,
`
`“Prelim. Resp.”) on September 3, 2014. We have jurisdiction under
`
`35 U.S.C. § 324, which provides that review may not be instituted “unless
`
`. . . the information presented in the petition . . . would demonstrate that it is
`
`more likely than not that at least 1 of the claims challenged in the petition is
`
`unpatentable.”
`
`Petitioner challenges the patentability of claims 1–28 (“the challenged
`
`claims”) of the ’411 patent under 35 U.S.C. §§ 101 and 103. We determine
`
`that the Petition demonstrates it is more likely than not that the challenged
`
`claims are unpatentable under 35 U.S.C. § 101, and, therefore, we institute a
`
`covered business method patent review of claims 1–28 of the ’411 patent.
`
`B. Related Matters
`
`Petitioner and Patent Owner identify numerous related U.S. District
`
`Court cases. See Pet. 2; see also Paper 7, 2–5.
`
`Patent Owner also states that related U.S. Patent No. 6,772,132 is the
`
`subject of TD Ameritrade Holding Corp. v. Trading Technologies
`
`International, Inc., Case CBM2014-00135 (PTAB); that related U.S. Patent
`
`No. 6,766,304 is the subject of TD Ameritrade Holding Corp. v. Trading
`
`Technologies International, Inc., Case CBM2014-00136 (PTAB); and that
`
`related U.S. Patent No. 7,685,055 is the subject of TD Ameritrade Holding
`
`Corp. v. Trading Technologies International, Inc., Case CBM2014-00137
`
`(PTAB). Paper 7, 5. Patent Owner further states that related U.S. Patent
`
`No. 6,766,304 was the subject of Reexamination, Control No. 90/008,577,
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`Patent 7,676,411 B2
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`and that related U.S. Patent No. 6,772,132 was the subject of
`
`Reexamination, Control No. 90/008,576 and of Reexamination, Control No.
`
`90/011,250. Id.
`
`C. The ’411 Patent (Ex. 1001)
`
`The ’411 patent is titled “Click Based Trading with Intuitive Grid
`
`Display of Market Depth,” and issued March 9, 2010, from Application No.
`
`11/585,907, filed October 25, 2006. Ex. 1001, 1. Application No.
`
`11/585,907 claims priority to (as a continuation of) Application No.
`
`11/415,163, filed May 2, 2006, which claims priority to (as a continuation
`
`of) Application No. 10/237,131, filed September 9, 2002, which claims
`
`priority to (as a continuation of) Application No. 09/590,692, filed June 9,
`
`2000, which issued as related U.S. Patent No. 6,772,132. Id.
`
`The ’411 patent discloses a “Mercury” display and method of using
`
`the Mercury display to trade a commodity. Id. at Abstract; col. 3, ll. 9–10.
`
`The Mercury display is a graphic user interface (“GUI”) that dynamically
`
`displays the market depth of a commodity traded in a market and allows a
`
`trader to place an order in an efficient manner. See id. at col. 3, ll. 11–28.
`
`The Mercury display is depicted in Figure 3 of the ’411 patent, which
`
`is reproduced below.
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`Patent 7,676,411 B2
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`Fig. 3 depicts the Mercury display of the ’411 patent
`
`
`
`The Mercury display includes a plurality of columns. Column 1005 is
`
`a static price axis, which includes a plurality of price values for the
`
`commodity. See id. at col. 7, ll. 55–66. Columns 1003 and 1004 are aligned
`
`with the static price axis and dynamically display bid and ask quantities,
`
`respectively, for the corresponding price values of the static price axis. See
`
`id. at col. 7, l. 54–col. 8, l. 16. Column 1002 contains various parameters
`
`and information used to execute trades, such as the default quantity listed in
`
`cell 1016. See id. at col. 8, l. 35–col. 9, l. 3.
`
`
`
`A trader executes trades using the Mercury display by first setting the
`
`desired commodity and default parameters, such as default quantity. See id.
`
`at col. 9, ll. 36–50; Fig. 6, step 1302. Then, a trader can send a buy order or
`
`sell order to the market with a single action, such as clicking on the
`
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`Patent 7,676,411 B2
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`appropriate cell in column 1003 or 1004. See id. at col. 9, l. 36–col. 10,
`
`l. 22; Fig. 6, steps 1306–1315.
`
`
`
`Claim 1 of the ’411 patent is illustrative of the challenged claims and
`
`is reproduced below:
`
`1. A method of displaying market information relating to and
`facilitating trading of a commodity being traded on an
`electronic exchange, the method comprising:
`
`receiving, by a computing device, market information for a
`commodity from an electronic exchange, the market
`information comprising an inside market with a current highest
`bid price and a current lowest ask price;
`
`displaying, via the computing device, a bid display region
`comprising a plurality of graphical locations, each graphical
`location in the bid display region corresponding to a different
`price level of a plurality of price levels along a price axis;
`
`displaying, via the computing device, an ask display region
`comprising a plurality of graphical locations, each graphical
`location in the ask display region corresponding to a different
`price level of the plurality of price levels along the price axis;
`
`dynamically displaying, via the computing device, a first
`indicator representing quantity associated with at least one trade
`order to buy the commodity at the current highest bid price in a
`first graphical location of the plurality of graphical locations in
`the bid display region, the first graphical location in the bid
`display region corresponding to a price level associated with the
`current highest bid price;
`
`upon receipt of market information comprising a new highest
`bid price, moving the first indicator relative to the price axis to
`a second graphical location of the plurality of graphical
`locations in the bid display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new highest bid price, wherein the
`second graphical location is different from the first graphical
`location in the bid display region;
`
`
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`Patent 7,676,411 B2
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`dynamically displaying, via the computing device, a second
`indicator representing quantity associated with at least one trade
`order to sell the commodity at the current lowest ask price in a
`first graphical location of the plurality of graphical locations in
`the ask display region, the first graphical location in the ask
`display region corresponding to a price level associated with the
`current lowest ask price;
`
`upon receipt of market information comprising a new lowest
`ask price, moving the second indicator relative to the price axis
`to a second graphical location of the plurality of graphical
`locations in the ask display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new lowest ask price, wherein the
`second graphical location is different from the first graphical
`location in the ask display region;
`
`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade orders,
`each graphical area corresponding to a different price level
`along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and send the trade order having a
`default quantity to the electronic exchange.
`
`
`
`
`
`D. Alleged Grounds of Unpatentability
`
`Petitioner sets forth grounds of unpatentability of the challenged
`
`claims as follows:
`
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`Patent 7,676,411 B2
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`Ground Prior Art
`
`Challenged Claim(s)
`
`§ 101
`
`n/a
`
`1–28
`
`§ 103
`
`Silverman,1 Gutterman,2 and
`
`1–10 and 12–28
`
`Togher3
`
`§ 103
`
`Silverman, Gutterman,
`
`11
`
`Togher, and Paal4
`
`§ 103
`
`TSE5 and Togher
`
`1–28
`
`
`
`
`
`II. ANALYSIS
`
`A. Requirements for Covered Business Method Patent Review
`
`Section 18 of the AIA6 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), 18(d)(1); see
`
`37 C.F.R. § 42.302. Petitioner and Patent Owner indicate that the Petitioner
`
`was sued for infringement of the ’411 patent. Pet. 3; Paper 7, 2. For reasons
`
`
`1 Silverman et al., U.S. Patent No. 5,077,665 (issued Dec. 31, 1991) (Ex.
`1003).
`2 Gutterman et al., U.S. Patent No. 5,297,031 (issued Mar. 22, 1994) (Ex.
`1004).
`3 Togher et al., U.S. Patent No. 5,375,055 (issued Dec. 20, 1994) (Ex. 1005).
`4 Paal et al., U.S. Patent No. 5,263,134 (issued Nov. 16, 1993) (Ex. 1018).
`5 TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1007). We note that this is an English translation of Ex. 1006, which is in
`Japanese. See Ex. 1008.
`6 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
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`Patent 7,676,411 B2
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`discussed below, we find that the ’411 patent is eligible for covered business
`
`method patent review because at least one claim “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” (see 37 C.F.R. § 42.301(a)), and because the claimed subject matter
`
`as a whole either does not 1) recite a technological feature that is novel and
`
`unobvious over the prior art or 2) solve a technical problem using a
`
`technological solution (see 37 C.F.R. § 42.301(b)).
`
`i. Covered Business Method Patent under 37 C.F.R. § 42.301(a)
`
`Petitioner argues that the claims require a method for performing data
`
`processing in the practice, administration or management of a financial
`
`product or service. Pet. 4 (citing 37 C.F.R. § 42.301(a)). Petitioner argues
`
`that claims 1 and 26 recite such a method because they require a GUI that
`
`displays information, such as bids and asks, for a market, and creates and
`
`sends trade orders to an electronic exchange. See id.
`
`Patent Owner disputes that the ’411 patent is directed to a method for
`
`performing data processing in the practice, administration or management of
`
`a financial product or service (see Prelim. Resp. 2–3) because the claims of
`
`the ’411 patent are directed to “purely technological” tools (id. at 3). Patent
`
`Owner argues that, although used in the field of trading, the ’411 patent is
`
`not a covered business method patent because the inventive aspects of the
`
`claims arise from structural and functional features embodied in a GUI tool
`
`(see id. at 34–35), and “not in any business method or practice” (id. at 34).
`
`A covered business method patent “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.”
`
`
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`Patent 7,676,411 B2
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`AIA § 18(d)(1). The “legislative history explains that the definition of
`
`covered business method patent was drafted to encompass patents ‘claiming
`
`activities that are financial in nature.’” 77 Fed. Reg. 48,734, 48,735 (Aug.
`
`14, 2012) (quoting 157 Cong. Rec. S5432 (daily ed. Sept. 8, 2011)
`
`(statement of Sen. Schumer)). The legislative history indicates that
`
`“financial product or service” should be interpreted broadly. Id. A patent
`
`need have only one claim directed to a covered business method to be
`
`eligible for review. Id. at 48,736 (Response to Comment 8).
`
`
`
`Upon review of the record, and taking into account Patent Owner’s
`
`argument, we determine that the ’411 patent is directed to a method for
`
`performing data processing or other operations used in the practice,
`
`administration, or management of a financial product or service. Claim 1
`
`recites “[a] method of displaying market information relating to and
`
`facilitating trading of a commodity being traded on an electronic exchange.”
`
`The claim recites steps of displaying market information, including
`
`indicators of asks and bids in the market, and recites steps of setting trade
`
`order parameters and sending a trade order to an electronic exchange.
`
`Displaying market information and sending a trade order to an electronic
`
`exchange are activities that are financial in nature. Given this, we determine
`
`that at least claim 1 of the ’411 patent claims a method for performing
`
`operations used in the practice, administration, or management of a financial
`
`product or service (i.e., trading on an electronic exchange) and, therefore, we
`
`determine that the ’411 patent is a covered business method patent in
`
`accordance with 37 C.F.R. § 42.301(a).
`
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`ii. Not a Technological Invention under 37 C.F.R. § 42.301(b)
`
`As indicated above, even if a patent includes claims that would
`
`otherwise be eligible for treatment as a covered business method, review of
`
`the patent is precluded if the claims cover only “technological invention[s],”
`
`as defined by 37 C.F.R. § 42.301(b). Petitioner further argues that the ’411
`
`patent is a covered business method patent because the claims do not recite a
`
`technical feature that is novel and unobvious over the prior art and do not
`
`solve a technical problem with a technical solution. See Pet. 5–7. First,
`
`Petitioner argues that the claims do not recite a technical feature because
`
`they only recite software and general computer components, such as a
`
`display and input devices. Pet. 5. Second, Petitioner argues that the claims
`
`do not solve a technical problem using a technical solution because the
`
`claims are directed to the known problem of placing a trade order for a
`
`commodity on an electronic exchange. Pet. 6–7.
`
`Conversely, Patent Owner argues that the ’411 patent is for a
`
`technological invention and, therefore, is not a covered business method
`
`patent. See Prelim. Resp. 46–57. First, Patent Owner argues that the claims
`
`recite a technical feature because they combine structural and functional
`
`features of the claimed GUI tool in a novel and non-obvious way. See id. at
`
`55–57. Second, Patent Owner argues that the claims solve the technical
`
`problem of submitting orders to the exchange with speed and accuracy with
`
`the technical solution of the combined structural and functional features of
`
`the claimed GUI tool. See id. at 47–55.
`
`
`
`To determine whether a patent is for a technological invention, we
`
`consider “whether the claimed subject matter as a whole recites a
`
`technological feature that is novel and unobvious over the prior art; and
`
`
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`solves a technical problem using a technical solution.” 37 C.F.R.
`
`§ 42.301(b). Both prongs must be satisfied in order for the patent to be
`
`excluded as a technological invention. The following claim drafting
`
`techniques, for example, typically do not render a patent a “technological
`
`invention”:
`
`(a) Mere recitation of known technologies, such as computer
`hardware, communication or computer networks, software,
`memory, computer–readable storage medium, scanners, display
`devices or databases, or specialized machines, such as an ATM
`or point of sale device.
`
`(b) Reciting the use of known prior art technology to
`accomplish a process or method, even if that process or method
`is novel and non–obvious.
`
`77 Fed. Reg. 48,756, 48,763–64 (Aug. 14, 2012).
`
`On this record, and taking into account Patent Owner’s argument, we
`
`are persuaded by Petitioner that the ’411 patent does not solve a technical
`
`problem with a technical solution. The ’411 patent solves the problem of a
`
`trader having to read a display of prices for a commodity and enter a trade
`
`order before the price for the commodity changes. See Ex. 1001, col. 2,
`
`l. 29–col. 3, l. 8. The ’411 patent solves this problem, as stated in claim 1,
`
`by displaying market information in a certain arrangement on a GUI and, via
`
`a single action of a user input device on a particular location in the GUI,
`
`setting order parameters and sending the order to the exchange. As written,
`
`claim 1 requires the use of a display, an input device, and a GUI (i.e.,
`
`software), which all were known technology. Given this, we determine that
`
`at least claim 1 does not solve a technical problem using a technical solution,
`
`and, thus, at least claim 1 does not satisfy the second prong of 37 C.F.R.
`
`§ 42.301(b). Accordingly, we find that regardless of whether the ’411 patent
`
`
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`does or does not recite novel and unobvious technical features, the ’411
`
`patent is eligible for covered business method patent review.
`
`Notwithstanding our determination above, on this record, we also are
`
`persuaded by Petitioner that the ’411 patent does not solve a technical
`
`problem with a technical solution. As stated above, the ’411 patent solves
`
`the problem of trader having to read a display of prices for a commodity and
`
`enter a trade order before the price for the commodity changes. See Ex.
`
`1001, col. 2, ll. 18–42. The ’411 patent solves this problem by displaying
`
`market information in a certain arrangement on a GUI and, via a single
`
`action of a user input device on a particular location in the GUI, setting order
`
`parameters and sending the order to the exchange. As discussed above,
`
`claim 1’s use of a display, an input device, and a GUI (i.e., software) were
`
`all known technology. Given this, we determine that at least claim 1 does
`
`not solve a technical problem using a technical solution and at least claim 1
`
`does not satisfy the second prong. Accordingly, we find that the ’411 patent
`
`is eligible for covered business method patent review.
`
`
`
`B. Claim Construction
`
`Consistent with the statute and legislative history of the AIA, we
`
`interpret claims using the broadest reasonable construction in light of the
`
`specification of the patent in which they appear. 37 C.F.R. § 42.300(b). An
`
`inventor, however, may rebut that presumption by providing a definition of
`
`the term in the specification with reasonable clarity, deliberateness, and
`
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`
`
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`“single action”
`
`Petitioner argues, and Patent Owner does not dispute, that “single
`
`action” is defined in the ’411 patent. Pet. 10 (citing Ex. 1001, col. 4, ll. 18–
`
`22). Upon review, we determine that the ’411 patent defines “single action”
`
`to mean “any action by a user within a short period of time, whether
`
`comprising one or more clicks of a mouse button or other input device, . . .
`
`for the purposes of the present invention.” Ex. 1001, col. 4, ll. 18–22.
`
`
`
`C. Ground Under 35 U.S.C. § 101
`
`Petitioner argues that claims 1–28 are patent ineligible under
`
`35 U.S.C. § 101 because they encompass an abstract idea. See Pet. 11–15.
`
`Patent Owner argues that Petitioner fails to demonstrate that the claims are
`
`patent ineligible (see Prelim. Response 64), because the Petition simply
`
`recites case law without any proper analysis as to why the “claims preempt
`
`the idea of placing an order based on observed market information” (id.).
`
`We are persuaded by Petitioner that claims 1–28 are more likely than
`
`not patent ineligible, inasmuch as the Petition provides sufficient analysis as
`
`to why the claims merely recite an abstract idea without significantly more.
`
`Patent-eligible subject matter is defined in § 101 of the Patent Act, which
`
`recites:
`
`Whoever invents or discovers any new and useful
`
`process, machine, manufacture, or composition of matter, or
`any new and useful improvement thereof, may obtain a patent
`therefor, subject to the conditions and requirements of this title.
`
`
`
`There are, however, three judicially created exceptions to the broad
`
`categories of patent-eligible subject matter in § 101: laws of nature, natural
`
`phenomena, and abstract ideas. Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134
`
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`S. Ct. 2347, 2354 (2014); Mayo Collaborative Servs. v. Prometheus Labs.,
`
`Inc., 132 S. Ct. 1289, 1293 (2012). Although an abstract idea, itself, is
`
`patent-ineligible, an application of the abstract idea may be patent-eligible.
`
`Alice, 134 S. Ct. at 2355. Thus, we must consider “the elements of each
`
`claim both individually and ‘as an ordered combination’ to determine
`
`whether the additional elements ‘transform the nature of the claim’ into a
`
`patent-eligible application.” Id. (citing Mayo, 132 S. Ct. at 1297–1298).
`
`The claim must contain elements or a combination of elements that are
`
`“sufficient to ensure that the patent in practice amounts to significantly more
`
`than a patent upon the [abstract idea] itself.” Id. (citing Mayo, 132 S. Ct. at
`
`1294).
`
`In this case, Petitioner argues that the claims 1–28 are patent ineligible
`
`because they recite just the abstract idea of “placing an order based on
`
`observed market information” along with well-known and insignificant
`
`extra-solution activity. Pet. 11–15. Patent Owner argues, generally, that
`
`Petitioner’s argument is unsupported and, therefore, cannot be a basis for
`
`instituting review. Prelim. Resp. 64.
`
`Independent claim 1 recites a method which falls, nominally, into the
`
`process category of patent-eligible subject matter recited in § 101.
`
`Specifically, claim 1 recites a method that requires the display of certain
`
`information in a certain arrangement on a GUI and allows for the placing of
`
`an order based on the information. On this record, we are persuaded by
`
`Petitioner that claim 1 is directed to the abstract idea of placing an order
`
`based on observed market information, as well as updating the market
`
`information.
`
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`The method of claim 1 requires a display, an input device, and a GUI
`
`(i.e., software) for performing the recited steps of receiving market
`
`information; displaying the information as indicators in bid and ask regions
`
`along a price axis; updating the market information in response to changes in
`
`the market; and placing an order by clicking on some portion of the
`
`information. Each of these steps individually or in combination, requires
`
`nothing more than a conventional, generic computer.
`
`The ’411 patent discloses that its system can be implemented “on any
`
`existing or future terminal or device” (Ex. 1001, col. 4, ll. 8–11), each of
`
`which is known to include a display, and discloses that the input device can
`
`be a mouse (id. at col. 4, ll. 12–15), which is a known input device. The
`
`’411 patent further discloses that “[t]he scope of the present invention is not
`
`limited by the type of terminal or device used” (id. at col. 4, ll. 11–12). Still
`
`further, the ’411 patent discloses that the physical mapping of information
`
`sent by the exchange to a screen grid (i.e., the GUI) “can be done by any
`
`technique known to those skilled in the art” and that “[t]he present invention
`
`is not limited by the method used to map the data to the screen display” (id.
`
`at col. 5, ll. 1–5).
`
`Thus, claim 1 does no more than simply instruct the practitioner to
`
`implement the abstract idea on a GUI. To be patent-eligible, a claim cannot
`
`simply state the abstract idea and add the words “apply it.” Mayo, 132 S. Ct.
`
`at 1294. On this record, we agree with Petitioner that claim 1 does not recite
`
`additional elements or combinations of elements that add significantly more
`
`to the abstract idea so as to claim patent-eligible subject matter.
`
`Independent claim 26 recites a computer readable medium having
`
`computer-readable instruction that, when executed, causes the computer to
`
`
`
`15
`
`

`
`CBM2014-00133
`Patent 7,676,411 B2
`
`perform the method of claim 1. Further, none of dependent claims 2–25, 27,
`
`or 28 appears to recite additional elements or combinations of elements that
`
`add significantly more to the abstract idea so as to claim patent-eligible
`
`subject matter.
`
`Accordingly, on this record, we determine that Petitioner has
`
`demonstrated that claims 1–28 are more likely than not patent ineligible
`
`under 35 U.S.C. § 101.
`
`
`
`D. Grounds Under 35 U.S.C. § 103
`
`As stated by the Supreme Court:
`
`Section 103(a) forbids issuance of a patent when “the
`differences between the subject matter sought to be patented
`and the prior art are such that the subject matter as a whole
`would have been obvious at the time the invention was made to
`a person having ordinary skill in the art to which said subject
`matter pertains.”
`
`KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of
`
`obviousness is resolved on the basis of underlying factual determinations,
`
`including: (1) the scope and content of the prior art, (2) any differences
`
`between the claimed subject matter and the prior art, and (3) the level of skill
`
`in the art. Graham v. John Deere Co., 383 U.S. 1, 17 (1966); see KSR, 550
`
`U.S. at 407 (“While the sequence of these questions might be reordered in
`
`any particular case, the [Graham] factors continue to define the inquiry that
`
`controls.”).
`
`i. Obviousness of Claims 1–28 based on Gutterman
`
`Petitioner argues that claims 1–28 are unpatentable under 35 U.S.C.
`
`§ 103(a) based on Silverman in combination with Gutterman and Togher,
`
`with or without Paal. See Pet. 15–57. Independent claim 1 requires:
`
`
`
`16
`
`

`
`CBM2014-00133
`Patent 7,676,411 B2
`
`
`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade
`orders, each graphical area corresponding to a different price
`level along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and [to] send the trade order having a
`default quantity to the electronic exchange.
`
`Independent claim 26 requires similar limitations.
`
`Petitioner relies upon Gutterman’s disclosure of a trader selecting an
`
`order icon, which causes the system to populate an electronic message with
`
`the trade information, and, then, selecting a “SEND FILL” button to transmit
`
`the message, to meet the claim limitation of selecting a particular area
`
`through a single action to set parameters and to send the trade order. Pet.
`
`19–20 (citing Ex. 1004, col. 13, ll. 29–43; Ex. 1019 ¶ 77, “Roman Decl.”).
`
`Patent Owner argues that the disclosures of Gutterman on which
`
`Petitioner relies do not meet the “single action” limitation because selecting
`
`an order icon in the deck pane and then selecting a send button in the fill
`
`pane is not a selection of a particular location of the order entry region by a
`
`single action, but is instead a selection of two different locations by two
`
`different actions. See Prelim. Resp. 58–59, 62–64.
`
`Gutterman discloses a broker workstation for managing orders in a
`
`market. Ex. 1004, Abstract. Gutterman’s Figure 2d is reproduced below.
`
`
`
`17
`
`

`
`CBM2014-00133
`Patent 7,676,411 B2
`
`
`Fig. 2d depicts a screen of the broker workstation
`
`
`
`
`
`Figure 2d depicts a broker’s workstation screen that includes a deck
`
`pane 135, which displays a buy side and a sell side divided by column 136.
`
`Id. at col. 12, ll. 1–6. Deck pane 135 also includes touch-sensitive order
`
`icons 139, such as buy order icon 139-1 and sell order icon 139-9. Id. at col.
`
`12, ll. 25–44. Figure 2d further depicts fill pane 140. Gutterman states:
`
`[T]he broker selects the order by touching the corresponding
`order icon in the deck pane 135. When the order is selected, the
`icon is highlighted, and the order’s quantity, price and time
`stamp appear in so-designated areas of the fill pane 140 which
`“pops up” into the lower left portion of the screen 12 by the
`operation of Fill Pane object 454. The broker enters the
`identification code of his counterpart broker and firm by means
`of the keyboard 14 or other suitable data entry device and
`presses the SEND FILL “button” on the screen 12. The
`workstation 10 then communicates the filled order information
`to the customer and clearing house via the electronic order entry
`system.
`
`Id. at col. 13, ll. 27–40.
`
`Given the above, and taking into account Petitioner’s argument, we
`
`are persuaded by Patent Owner that Gutterman does not meet the “single
`
`action” limitation. Gutterman does not send the order in response to the
`
`
`
`18
`
`

`
`CBM2014-00133
`Patent 7,676,411 B2
`
`selection of the order icon in deck pane 135 (i.e., the claimed particular
`
`location of the order entry region). Instead, the order is sent to the fill pane
`
`140 and then when the “SEND FILL” button is selected, the order is
`
`transmitted. Id. Thus, instead of teaching selecting a particular graphical
`
`area in the order entry region through a “single action” that both sets a price
`
`for a trade order and transmits the trade order, Gutterman describes two
`
`actions that occur in two different graphical areas. We note that Petitioner
`
`does not rely upon Silverman to meet the “single action” limitation. See Pet.
`
`19 (explaining that Silverman does not provide any details on order entry,
`
`other than through conventional data entry tools).
`
`Accordingly, we determine that Petitioner fails to establish that it is
`
`more likely than not that independent claims 1 and 26, as well as claims 2–
`
`25, 27, and 28, dependent thereon, would have been obvious based on
`
`Gutterman.
`
`ii. Obviousness of Claims 1–28 based on TSE
`
`
`
`Petitioner argues that claims 1–28 are unpatentable under 35 U.S.C.
`
`§ 103(a) based on TSE in combination with Togher. See Pet. 57–79. Again,
`
`the issue of obviousness relates to the requirements in independent claim 1
`
`of:
`
`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade
`orders, each graphical area corresponding to a different price
`level along the price axis; and
`
`selecting a particular graphical area in the order entry region
`through a single action of the user input device to both set a
`price for the trade order and [to] send the trade order having a
`default quantity to the electronic exchange.
`
`
`
`19
`
`

`
`CBM2014-00133
`Patent 7,676,411 B2
`
`Independent claim 26 requires similar limitations. Petitioner argues that the
`
`limitation of selecting a particular area through a single action that sets
`
`parameters and sends the trade order is met by TSE’s description of placing
`
`an order by, first, double-clicking a specific area on the Board/Quotation
`
`Screen to open a new order entry window, and then selecting a send button
`
`on the new order entry window. See Pet. 69–70 (citing Ex. 1007, 137;
`
`Roman Decl. ¶ 173).
`
`Patent Owner argues that the above relied-upon description of TSE
`
`does not meet the “single action” limitation. Specifically, Patent Owner
`
`argues that double-clicking the area of the Board/Quotation Screen and
`
`clicking a send button on the new order entry window is not a selection of a
`
`particular location of the order entry region by a single action, but rather is

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