Trials@uspto.gov
`571.272.7822
`
`
`
`
` Paper No. 129
`
` Entered: February 17, 2017
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TRADESTATION GROUP, INC. and
`TRADESTATION SECURITIES, INC., IBG LLC, and
`INTERACTIVE BROKERS, LLC,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2015-001611
`Patent No. 6,766,304 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`Opinion for the Board filed by Administrative Patent Judge PLENZLER.
`
`Opinion dissenting filed by Administrative Patent Judge PETRAVICK.
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`Covered Business Method Patent Review
`37 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
`
`
`1 CBM2016-00035 has been joined with this proceeding.
`
`

`

`CBM2015-00161
`Patent 6,766,304 B2
`
`
`I. INTRODUCTION
`
`
`
`TradeStation Group, Inc. and TradeStation Securities, Inc.
`
`(collectively, “Petitioner”) filed a Petition (Paper 2, “Pet.”) on July 20, 2015,
`
`requesting review under the transitional program for covered business
`
`method patents of the AIA2 of U.S. Patent No. 6,766,304 B2 (Ex. 1001, “the
`
`’304 patent”). Pursuant to 35 U.S.C. § 324, we instituted a covered business
`
`method patent review as to claims 1–40 on the ground of claims 1–40 being
`
`unpatentable under 35 U.S.C. § 101. Trading Technologies, Inc. (“Patent
`
`Owner”) filed a Corrected Patent Owner Response on July 5, 2016. Paper
`
`69 (“PO Resp.”). Petitioner filed a Reply. Paper 98 (“Pet. Reply”). An oral
`
`hearing in this proceeding was held on October 19, 2016. A transcript of the
`
`hearing is included in the record. Paper 123 (“Tr.”).
`
`After oral hearing, the Federal Circuit issued a decision in Trading
`
`Technologies International, Inc. v. CQG, Inc., No. 2016-1616, 2017 WL
`
`192716 (Fed. Cir. Jan. 18, 2017), determining that the claimed subject
`
`matter of the ’304 patent is patent eligible under § 101. Petitioner and Patent
`
`Owner, with authorization (Paper 125), each filed supplemental briefing
`
`addressing the impact of that decision on this proceeding. Paper 128 (“Pet.
`
`Br.”); Paper 126 (“PO Br.”).
`
`
`
`Petitioner filed a Motion to Exclude Evidence (Paper 103), and Patent
`
`Owner also filed a Motion to Exclude Evidence (Paper 104).
`
`
`
`This Final Written Decision is issued pursuant to 35 U.S.C. § 328(a)
`
`and 37 C.F.R. § 42.73. For the reasons that follow, we determine that claims
`
`
`2 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
`
`
`2
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`

`

`CBM2015-00161
`Patent 6,766,304 B2
`
`1–40 of the ’304 patent have not been shown to be unpatentable under 35
`
`U.S.C. § 101.
`
`
`
`II. DISCUSSION
`
`Petitioner challenges claims 1–40 as directed to patent-ineligible
`
`subject matter under 35 U.S.C. § 101. Pet. 23–52; Pet. Reply 8–24. Patent
`
`Owner disagrees. PO Resp. 14–65. Our reviewing court also disagrees.
`
`Trading Techs., 2017 WL 192716 at *4.
`
`Under 35 U.S.C. § 101, we must first identify whether an invention
`
`fits within one of the four statutorily provided categories of patent-
`
`eligibility: “processes, machines, manufactures, and compositions of
`
`matter.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713–14 (Fed. Cir.
`
`2014). There is no dispute that the claims fit within one of the four
`
`statutorily provided categories of patent-eligibility. For example, there is no
`
`dispute that claim 1 fits within the process category.
`
`Section 101 “contains an important implicit exception: Laws of
`
`nature, natural phenomena, and abstract ideas are not patentable.” Alice
`
`Corp. Pty. Ltd. v. CLS Bank. Int’l, 134 S. Ct. 2347, 2354 (2014) (citing
`
`Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107,
`
`2116 (2013) (internal quotation marks and brackets omitted)). In Alice, the
`
`Supreme Court reiterated the framework set forth previously in Mayo
`
`Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
`
`(2012) “for distinguishing patents that claim laws of nature, natural
`
`phenomena, and abstract ideas from those that claim patent-eligible
`
`applications of those concepts.” Alice, 134 S. Ct. at 2355. The first step in
`
`
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`3
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`CBM2015-00161
`Patent 6,766,304 B2
`
`the analysis is to “determine whether the claims at issue are directed to one
`
`of those patent-ineligible concepts.” Id.
`
`There is no definitive rule to determine what constitutes an “abstract
`
`idea.” Rather, the Federal Circuit has explained that “both [it] and the
`
`Supreme Court have found it sufficient to compare claims at issue to those
`
`claims already found to be directed to an abstract idea in previous cases.”
`
`Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir. 2016); see
`
`also Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288, 1294
`
`(Fed. Cir. 2016) (explaining that, in determining whether claims are patent-
`
`eligible under § 101, “the decisional mechanism courts now apply is to
`
`examine earlier cases in which a similar or parallel descriptive nature can be
`
`seen—what prior cases were about, and which way they were decided”).
`
`The Federal Circuit has already decided that the claims at issue before
`
`us are not directed to an abstract idea. Trading Techs., 2017 WL 192716 at
`
`*4. Petitioner provides no persuasive reason for us to ignore that guidance,
`
`particularly with respect to whether the claims are directed to an abstract
`
`idea. See, e.g., Pet. Br. 3–5. For example, Petitioner offers no persuasive
`
`explanation as to why its characterization of the alleged abstract idea would
`
`affect the Federal Circuit’s determination that the claims are not directed to
`
`an abstract idea. See id. at 5. We are also not apprised of a persuasive
`
`reason to arrive at a different outcome with respect to whether the claims are
`
`directed to an abstract idea based on the differences between the record
`
`before us and that before the Federal Circuit alleged by Petitioner. See id. at
`
`3–5.
`
`Accordingly, we follow the Federal Circuit’s guidance and, in
`
`accordance with that guidance, determine the claims before us to be patent
`
`
`
`4
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`

`

`CBM2015-00161
`Patent 6,766,304 B2
`
`eligible. The sole issue before us is the eligibility of the challenged claims.
`
`Based on the facts of this proceeding, we determine that it is not necessary to
`
`revisit whether the challenged patent is a covered business method patent as
`
`Patent Owner urges.
`
`
`
`
`
`III. MOTIONS TO EXCLUDE EVIDENCE
`
`Petitioner moves to exclude Exhibits 2029, 2211, 2220, 2222, 2224,
`
`2225, 2228, 2232, 2247, 2251, 2274–2276, 2286–2288, and 2292–2296
`
`(collectively, “the eSpeed/CQG Transcripts”); Exhibit 2223 (“the Electronic
`
`Trader Declarants Exhibits”); Exhibits 2240–2246, 2250, 2252–2273, and
`
`2277 (“the Third Party Emails”); Exhibits 2212, 2213, and 2214 (“Brumfield
`
`Sketch and Animations”); Exhibits 2030, 2032, 2278 (“eSpeed/CQG Jury
`
`Verdict Forms & Docket Entry; Exhibit 2169B, ¶¶ 75, 83–86, 89–92, 94–97,
`
`102–104, 106–111, 126–128, 131, 133–34, 136– 138, 140, 141, 151–153,
`
`172 (“Confidential Declaration of Christopher Thomas”). Paper 103. Patent
`
`Owner moves to exclude Exhibit 1016 (TSE), Exhibit 1017 (TSE
`
`Translation, and Exhibit 1025, 57:18–58:19 (Testimony of Dan Olsen).
`
`Paper 104.
`
`
`
`The Petitioner’s Motion to Exclude Evidence and Patent Owner’s
`
`Motion to Exclude Evidence are dismissed because we do not rely on the
`
`Exhibits or portions of the Exhibits in reaching our Decision.
`
`
`
`
`
`
`
`IV. CONCLUSION
`
`We conclude Petitioner has failed to show that claims 1–40 are
`
`unpatentable under 35 U.S.C. § 101.
`
`
`
`5
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`

`CBM2015-00161
`Patent 6,766,304 B2
`
`
`Patent Owner’s Motion to Exclude Evidence is dismissed.
`
`Petitioner’s Motion to Exclude Evidence is dismissed.
`
`
`
`Accordingly, it is hereby:
`
`V. ORDER
`
`ORDERED that claims 1–40 of U.S. Patent No. 6,384,850 B1 have
`
`not been shown to be unpatentable;
`
`FURTHER ORDERED that Patent Owner’s Motion to Exclude
`
`Evidence is dismissed;
`
`FURTHER ORDERED that Petitioner’s Motion to Exclude Evidence
`
`is dismissed; and
`
`FURTHER ORDERED that because this is a final written decision of
`
`the Board under 35 U.S.C. § 328(a), parties to the proceeding seeking
`
`judicial review of this decision must comply with the notice and service
`
`requirements of 37 C.F.R. § 90.2.
`
`
`
`
`
`
`
`6
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`

`

`Trials@uspto.gov
`571.272.7822
`
`
`
`
` Paper No. 129
`
` Entered: February 17, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`TRADESTATION GROUP, INC. and
`TRADESTATION SECURITIES, INC., IBG LLC, and
`INTERACTIVE BROKERS, LLC,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`Case CBM2015-001613
`Patent No. 6,766,304 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge, dissenting.
`
`FINAL WRITTEN DECISION
`Covered Business Method Patent Review
`37 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`3 CBM2016-00035 has been joined with this proceeding.
`
`

`

`CBM2015-00161
`Patent 6,766,304 B2
`
`
`
`Petitioner was not a party in the suit involved in Trading Technologies
`
`International, Inc. v. CQG, Inc., No. 2016-1616, 2017 WL 192716 (Fed.
`
`Cir. Jan. 18, 2017) (“CQG”). Accordingly, the Federal Circuit was not
`
`placed in a position to determine the merits of the Petitioner’s challenge to
`
`the patent eligibility of claims 1–40 under 35 U.S.C. § 101. Petitioner’s
`
`challenge to the patent eligibility of claims 1–40 under 35 U.S.C. § 101 is
`
`based on a construction of the claims and evidence submitted in this
`
`proceeding, such as different evidence of what was routine and
`
`conventional. See Pet. Br. 1–5 (discussing the differences between the
`
`records in CQG and here). The determination of whether claims 1–40 are
`
`patent eligible under 35 U.S.C. § 101 should focus on the record here. The
`
`patent-eligibility determination reached in CQG was based on the different
`
`record before the District Court.
`
`
`
`Treating CQG as controlling of the patent-eligibility of claims 1–40,
`
`notwithstanding a different outcome based on the record developed in this
`
`proceeding involving a different party and relying on different evidence, in
`
`effect, treats CQG as precedential to the patent-eligibility question in this
`
`proceeding. Because the Federal Circuit did not in fact designate CQG as
`
`precedential, the possibility remains that the Federal Circuit would consider
`
`the merits of a different outcome based on a different record.
`
`
`
`The presumption that CQG controls patent-eligibility of claims 1–40,
`
`notwithstanding a possible different outcome based on a different set of facts
`
`and evidence, necessarily follows from the view that the question of patent-
`
`eligibility is a pure question of law. However, if the question of patent-
`
`eligibility is question of law based on underlying facts, then underlying facts
`
`have the potential of controlling the ultimate determination. Likewise, a
`
`
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`2
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`

`CBM2015-00161
`Patent 6,766,304 B2
`
`determination of obviousness under 35 U.S.C § 103 may depend on which
`
`prior art is applied against the claims. The Federal Circuit has not yet
`
`decided whether the question of patent-eligibility is a pure question of law or
`
`a question of law based on underlying facts.
`
`
`
`I respectfully dissent and based on the record before us determine that
`
`the claims of the ’304 patent are not directed to patent eligible subject matter
`
`under 35 U.S.C. § 101.
`
` Background
`
`
`
`The ’304 patent “is directed to the electronic trading of commodities.”
`
`Ex. 1001, 1:17–18. According to the ’304 patent, 80% of the total time to
`
`place an order is attributable to the time it takes for a trader to read the prices
`
`displayed and to enter a trade order, by manually entering parameters, such
`
`as commodity symbol, the desired price, the quantity and whether a buy or
`
`sell order is desired. Id. at 2:28–51. “The more time a trader takes entering
`
`an order, the more likely the price on which he wanted to bid or offer will
`
`change or not be available in the market.” Id. at 2:51–54. The ’304 patent
`
`discloses a method of trading that reduces the time it takes for a trader to
`
`place an order and, thus, increases the likelihood that the order will be filled
`
`at desirable prices and quantities. Id. at Abstract and 3:2–7. The method
`
`uses a graphical user interface (“GUI”), named the Mercury display. Id. at
`
`Abstract, 3:9–10.
`
`
`
`Before turning to a discussion of how the Mercury display is used to
`
`enter an order on an electronic exchange, a discussion of conventional
`
`methods of trading is helpful. Figure 2 of the ’304 patent depicts a GUI.
`
`Ex. 1001, Fig. 2 (“the Fig. 2 GUI”). According to Patent Owner, the Fig. 2
`
`GUI illustrates the “widely accepted conventional wisdom regarding”
`
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`3
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`CBM2015-00161
`Patent 6,766,304 B2
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`electronic trading. PO Resp. 1; see also Paper 22, 7 (describing the Fig. 2
`
`GUI as “conventional”) and PO Resp. 2 (describing Fig. 2 GUI as
`
`“ubiquitous by the time of the invention” of the ’304 patent).
`
`
`
`Figure 2 of the ’304 patent is reproduced below.
`
`
`
`
`
`The Fig. 2 GUI displays market information in columns. See id. at
`
`5:23–28, 6:1–2. BidQty column 202 displays bid quantity, and BidPrc
`
`column 203 displays corresponding bid price levels. AskQty column 205
`
`displays ask quantities, and AskPrc column 204 displays corresponding ask
`
`price levels. Id. at 5:23–28 and 6:4–12. The inside market (i.e., the best
`
`(highest) bid price and quantity and the best (lowest) ask price and quantity))
`
`is displayed in row one. Id. at 5:19–21. Rows 2–5 display the market depth,
`
`a list of next-best bids and asks. Id. at 5:22–26.
`
`
`
`Prices and quantities change dynamically based on real time
`
`information from the market. Id. at 5:29–31. The inside market, however, is
`
`always displayed in row 1, a fixed location. PO Resp. 2–3. According to
`
`Patent Owner, “[t]his made perfect sense and was perceived by those skilled
`
`in the art at the time as a significant advantage because it emphasized focus
`
`on the primary target for the trader: the inside market” and “since the
`
`
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`4
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`

`CBM2015-00161
`Patent 6,766,304 B2
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`location of the inside market is always known, the trader may easily spot the
`
`target, regardless of changes in the market.” PO Resp. 5. Christopher H.
`
`Thomas testifies that other prior art GUIs, which are similar to the Fig. 2
`
`GUI, “displayed the locations for the best bid and ask prices such that the
`
`prices were displayed vertically (e.g., with the location for the best ask price
`
`being displayed above the location for the best bid price).” Ex. 2169 ¶ 57;
`
`see also Ex. 1016, 107 (depicting a trading screen having a central order
`
`price column and corresponding ask and bid quantities in adjacent columns).
`
`
`
`In the Fig. 2 GUI, “the user could place an order by clicking on a
`
`location (e.g., a cell) in one of the price or quantity columns.” Ex. 2169
`
`¶ 53; see PO Resp. 6–7. According to Patent Owner, “these types of tools
`
`permitted ‘single action’ order entry that consisted of a trader presetting a
`
`default quantity and then clicking on a cell in the screen . . . to cause a trade
`
`order message to be sent to the exchange at the preset quantity and at the
`
`price value associated with that cell.” Ex. 1006, 7.
`
`
`
`Other types of conventional trading GUIs used order entry tickets to
`
`send trade orders to an electronic exchange. PO Resp. 1. An order entry
`
`ticket is “usually in the form of a window, with areas for a trader to fill out
`
`order parameters (e.g., price, quantity, an identification of the item being
`
`traded, buy or sell).” Id. at 1–2; see also Ex. 1001, 2:42–54 (describing a
`
`trader manually entering trade order parameters); Ex. 2169 ¶ 45.
`
`
`
`Turning now to a discussion of how the Mercury display is used to
`
`enter an order on an electronic exchange, the Mercury display is depicted in
`
`Figure 3 of the ’304 patent. Id. at 3:45–46. Figure 3 is reproduced below.
`
`
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`5
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`CBM2015-00161
`Patent 6,766,304 B2
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`
`
`
`As can be seen in Fig. 3 above, like the Fig. 2 GUI, the Mercury
`
`display displays market information in columns. Id. BidQ column 1003
`
`displays bid quantities, and AskQ column 1004 displays bid ask quantities.
`
`See id. at 7:54–55. The bid and ask quantities are displayed along
`
`corresponding price levels in Prc column 1005, which is a common price
`
`axis. The inside market is displayed at 1020. Id.
`
`
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`6
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`CBM2015-00161
`Patent 6,766,304 B2
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`
`
`Unlike the Fig. 2 GUI, the Mercury display values in the price column
`
`“are static; that is, they do not normally change positions unless a re-
`
`centering command is received.” Ex. 1001, 7:65–67. The bid quantities and
`
`ask quantities move up and down as the market changes, and, thus, the
`
`location of the inside market moves up and down. See id. at 7:67–8:18.
`
`According to Patent Owner, some traders focused on trading at particular
`
`prices, not the inside market prices. PO Resp. 6–7.
`
`
`
`Like the Fig. 2 GUI, a trader executes trades using the Mercury
`
`display by first setting the desired commodity and default parameters, such
`
`as default quantity. Id. at 9:35–49 and 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 appropriate cell in column 1003 or 1004. See id. at 9:39–
`
`11:34; Fig. 6, steps 1306–1315. In the example shown in Figure 3, a left
`
`click on “20” in column 1004 will send an order to the market to buy 17 lots
`
`(i.e., the default quantity set in cell 1016 of column 1002) at a price of 90.
`
`See id. at 10:39–41.
`
`Claim Language
`
`
`
`“The § 101 inquiry must focus on the language of the Asserted Claims
`
`themselves.” Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138, 1149
`
`(Fed. Cir. 2016); see also Accenture Global Servs., GmbH v. Guidewire
`
`Software, Inc., 728 F.3d 1336, 1345 (Fed. Cir. 2013) (admonishing that “the
`
`important inquiry for a § 101 analysis is to look to the claim”); Content
`
`Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d
`
`1343, 1346 (Fed. Cir. 2014) (“We focus here on whether the claims of the
`
`asserted patents fall within the excluded category of abstract ideas.”).
`
`
`
`
`
`Claim 1 of the ’304 patent is representative and is reproduced below.
`
`7
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`CBM2015-00161
`Patent 6,766,304 B2
`
`
`1. A method for displaying market information relating to and
`facilitating trading of a commodity being traded in an electronic
`exchange having an inside market with a highest bid price and a
`lowest ask price on a graphical user interface, the method
`comprising:
`
`dynamically displaying a first indicator in one of a plurality of
`locations in a bid display region, each location in the bid
`display region corresponding to a price level along a common
`static price axis, the first indictor representing quantity
`associated with at least one order to buy the commodity at the
`highest bid price currently available in the market;
`
`dynamically displaying a second indicator in one of a plurality
`of locations in an ask display region, each location in the ask
`display region corresponding to a price level along the common
`static price axis, the second indicator representing quantity
`associated with at least one order to sell the commodity at the
`lowest ask price currently available in the market;
`
`displaying the bid and ask display regions in relation to fixed
`price levels positioned along the common static price axis such
`that when the inside market changes, the price levels along the
`common static price axis do not move and at least one of the
`first and second indicators moves in the bid or ask display
`regions relative to the common static price axis;
`
`displaying an order entry region comprising a plurality of
`locations for receiving commands to send trade orders, each
`location corresponding to a price level along the common static
`price axis; and
`
`in response to a selection of a particular location of the order
`entry region by a single action of a user input device, setting a
`plurality of parameters for a trade order relating to the
`commodity and sending the trade order to the electronic
`exchange.
`
`
`
`In a covered business method patent review, claim terms in an
`
`unexpired patent are given the broadest reasonable construction in light of
`
`the specification of the patent in which they appear. 37 C.F.R. § 42.300(b);
`
`
`
`8
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`CBM2015-00161
`Patent 6,766,304 B2
`
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2144–46 (2016)
`
`(upholding the use of the broadest reasonable interpretation standard). In the
`
`Institution Decision, we determined that the broadest reasonable
`
`interpretation of common static price axis is “a reference line or column of
`
`price levels that is common to the bid and ask display regions where the
`
`price levels do not change positions unless a re-centering command is
`
`received.” Paper 29, 19–20. In its Response, Patent Owner provided an
`
`alternate interpretation. See PO Resp. 13. This interpretation requires that
`
`the common static price axis have plural price levels. The plain language of
`
`other limitations of claim 1 also requires the common static price axis to
`
`have plural price levels. See Ex. 1004, 12:56 (“fixed price levels”). The
`
`price levels must correspond to the location in the bid display region where a
`
`first indicator representing an order at the highest bid price is displayed and
`
`correspond to the location in the ask display region where a second indicator
`
`representing an order to the lowest ask price is displayed. See id. at 12:51–
`
`54. Claim 1, thus, encompasses a common static price axis that only
`
`displays two price levels, one corresponding to the highest bid price and one
`
`corresponding to the lowest ask price (i.e., the inside market). For example,
`
`a price column that only includes the “90” and “89” price levels of inside
`
`market 1020 of the Mercury display depicted in Fig. 3 of the ’304 patent,
`
`without any of the other depicted price levels in column 1005, would be a
`
`common static price axis as required by claim 1. See Ex. 1001, Fig. 3.
`
`
`
`Patent Owner implies that the claim requires displaying a greater
`
`range of price levels or price levels that have no corresponding orders. See
`
`PO Resp. 4 (arguing that columns 203 and 204 of the Fig. 2 GUI are not a
`
`price axis because it does not display price levels that have no orders).
`
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`9
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`CBM2015-00161
`Patent 6,766,304 B2
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`Neither the broadest reasonable interpretation of common static price axis
`
`nor the plain language of any other claim limitation require such or preclude
`
`an axis that does not display price levels that have no corresponding order
`
`information. The ’304 patent discloses that in some situations only the
`
`inside market is displayed: “How far into the market depth the present
`
`invention can display depends on how much of the market depth the
`
`exchanged provide. Some exchanges . . . provide no market depth.” Ex.
`
`1001, 5:7–11.
`
`Eligibility
`
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`Patent-eligible subject matter is defined in § 101 of the Patent Act,
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`which recites:
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`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.
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`There are, however, three judicially created exceptions to the broad
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`categories of patent-eligible subject matter in § 101: laws of nature, natural
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`phenomena, and abstract ideas. Alice, 134 S. Ct. at 2354; Mayo
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`Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
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`(2012). Although an abstract idea, itself, is patent-ineligible, an application
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`of the abstract idea may be patent-eligible. Alice, 134 S. Ct. at 2355. Thus,
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`we must consider “the elements of each claim both individually and ‘as an
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`ordered combination’ to determine whether the additional elements
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`‘transform the nature of the claim’ into a patent-eligible application.” Id.
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`(citing Mayo, 132 S. Ct. at 1297–98). The claim must contain elements or a
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`combination of elements that are “sufficient to ensure that the patent in
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`practice amounts to significantly more than a patent upon the [abstract idea]
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`itself.” Id. (citing Mayo, 132 S. Ct. at 1294).
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`Abstract Idea
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` “The ‘abstract idea’ step of the inquiry calls upon us to look at the
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`‘focus of the claimed advance over the prior art’ to determine if the claim’s
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`‘character as a whole’ is directed to excluded subject matter.’” Affinity Labs
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`of Texas v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (quoting
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`Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir.
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`2016); see also Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed.
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`Cir. 2016). According to Petitioner, the claims are directed to the abstract
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`idea of “placing an order based on displayed market information, as well as
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`updating market information,” which is a “‘fundamental economic practice
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`long prevalent in our system of commerce.’” Pet. 35 (quoting Alice, 134 S.
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`Ct. at 235); Pet. Reply 16. This is consistent with claim 1 of the ’304 patent.
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`Claim 1 of the ’304 patent recites “a method for displaying market
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`information relating to and facilitating trading of a commodity being traded
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`in an electronic exchange having an inside market with a highest bid price
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`and a lowest ask price on a graphical user interface.” Ex. 1001, 12:35–38.
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`Claim 1 recites two steps of displaying market information, bid and ask
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`quantities, in regions along a common static price axis. Id. at 12:41–54.
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`The market information is an indicator of an order to buy at the highest bid
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`price and an indicator of an order to sell at the lowest ask price. Id. In other
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`words, the displayed market information is the inside market. Claim 1 then
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`recites a step of moving the market information along the price axis as the
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`market changes. Id. at 12:55–61. Claim 1 finally recites a step of displaying
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`an order entry region and a step of setting parameters for a trade order and a
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`step of sending a trade order to an exchange. Id. at 12:41–13:3. As can be
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`seen from its steps, the focus of claim 1 is placing trade orders based on
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`displayed market information (i.e., the inside market), as well as updating
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`the market information. This focus is consistent with the ’304 patent’s
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`statement that “[t]he present invention is directed to the electronic trading of
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`commodities. . . . It facilitates the display of and the rapid placement of
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`trade orders.” Id. at 1:7–23. The focus of claim 1 is also consistent with the
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`problem disclosed by the ’304 patent, which is a trader missing an intended
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`price because the market changed during the time required for a trader to
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`read the prices displayed and to manually enter an order. Id. at 2:41–67.
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`Claim 1 does not recite any limitations that specifies how the
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`computer implements the steps or functions for using a GUI. For example,
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`claim 1 recites displaying an arrangement of the market information on the
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`GUI. The bid quantities are displayed in the bid region at locations that
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`correspond to prices along a common static price axis and ask quantities are
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`displayed in an ask region at locations that correspond to prices along the
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`common static price axis. Id. at 12:41–55. Claim 1 does not specify how
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`the computer maps the bid quantities, ask quantities, and price axis to the
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`display. The ’304 patent also does not disclose an unconventional or
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`improved method of mapping the bid quantities, ask quantities, and price
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`axis to the display. It states that “[t]he physical mapping of such
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`information to a screen grid can be done by any technique known to those
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`skilled in the art” and that “[t]he present invention is not limited by the
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`method used to map the data to the screen.” Id. at 5:3–7.
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`The ’304 patent discloses that at least 60 exchanges throughout the
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`world utilize electronic trading and discloses that it is known that electronic
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`trading includes analyzing displayed market information and updated market
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`information to send trade orders to an exchange. See id. at 1:27–2:67.
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`Similarly, Patent Owner’s declarant Christopher H. Thomas indicates that
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`traders in prior trading systems, including pre-electronic open outcry
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`systems, which have been used for over one hundred years, send trade orders
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`to an exchange based on the inside market price. Ex. 2169 ¶¶ 31, 57, and
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`58; Ex. 1015. Mr. Thomas testifies that “[i]n the trading pit, traders utilize
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`shouting and hand signals to transfer information about buy and sell orders
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`to other traders. To avoid confusion, the inside market prices were the
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`focus, and traders could only shout and signal regarding their interest at the
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`best bid/offer or at prices that improves the best bid/offer.” Ex. 2169 ¶ 31.
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`Given this, placing an order based on displayed market information, such as
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`the inside market, as well as updating the market information is a
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`fundamental economic and conventional business practice.
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`The claims at issue here are like the claims at issue in Affinity Labs.
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`In Affinity Labs, the claim at issue recited an application that enabled a
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`cellular telephone to present a GUI displaying a list of media sources that
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`included selectable items for selecting a regional broadcasting channel.
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`Affinity Labs, 838 F.3d at 1255–56. The claim also recited that the cellular
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`telephone was enabled to transmit a request for the selected regional
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`broadcasting channel. Id. at 1256. The claims at issue here are also like the
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`claims at issue in Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229 (Fed. Cir.
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`2016). In Ameranth, the claim at issue recited a GUI that displayed menu
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`items in a specific arrangement, a hierarchical tree format. Menu items were
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`selected to generate a second menu from a first menu. Ameranth 842 F.3d at
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`1234. In both Affinity Labs and Ameranth, the court determined that the
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`claims were not directed to a particular way of programming or designing
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`the software, but instead merely claim the resulting systems. The court thus
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`determined that the claims were not directed to a specific improvement in
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`the way computers operate. Affinity Labs, 838 F.3d at 1260–61; Ameranth,
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`842 F.3d at 1241. Here, the claims also recite the resulting GUI and are not
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`directed to specific improvements in the way the computers operate.
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`“Though lengthy and numerous, the claims [that] do not go beyond requiring
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`the collection, analysis, and display of available information in a particular
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`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
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`over conventional computer and network technology” are patent ineligible.
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`Elec. Power Grp., 830 F.3d at 1351. “Generally, a claim that merely
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`describes an ‘effect or result dissociated from any method by which [it] is
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`accomplished’ is not directed to patent-eligible subject matter.” Ameranth,
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`842 F.3d at 1244 (quoting Internet Patents Corp. v. Active Network, Inc.,
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`790 F.3d 1343, 1348 (Fed. Cir. 2015)).
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`Claim 1 of the ’304 patent is unlike the claims at issue in DDR
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`Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (Fed. Cir. 2014) and
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`Enfish. In DDR Holdings, the court determined that the claims did not
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`embody a fundamental economic principle or a longstanding commercial
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`practice. The claims at issue in DDR Holdings were directed to retaining
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`website visitors, which the court determined was a problem “particular to the
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`Internet.” DDR Holdings, 773 F.3d at 1257. The court also determined that
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`the invention was “necessar