`
`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.
`
`____________
`
`
`Case CBM2016-00051
`Patent No. 7,904,374
`
`___________
`
`
`
`PETITIONER’S REPLY TO PATENT OWNER’S RESPONSE
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`TABLE OF CONTENTS
`
`I.
`
`INTRODUCTION ............................................................................................... 1
`
`II. ARGUMENT ...................................................................................................... 2
`
`A. The CQG Case Neither Controls the Outcome In This Case Nor Should It
`
`Inform The Board’s Decision ................................................................................. 2
`
`1. The non-precedential CQG decision does not preclude Petitioners’ CBM
`challenge to a related patent ............................................................................ 2
`2. The evidence in this CBM is dramatically different than the evidence in
`CQG ................................................................................................................. 4
`3. As the Board recognized, the ‘374 patent claims are broader, and even
`more abstract, than the claims at issue in CQG ............................................... 8
`B. Controlling Federal Circuit Authority Compels a Conclusion That the
`
`Challenged Claims Are Patent Ineligible ............................................................. 10
`
`1. Electric Power Group is dispositive ........................................................ 11
`2. Ameranth is dispositive ............................................................................ 15
`3. DDR is inapposite because the challenged claims are not directed to a
`specific solution to a problem particular to the internet ................................ 18
`4. Enfish is inapposite because the purported invention does not improve
`the basic functioning of a computer .............................................................. 21
`5. Summary .................................................................................................. 23
`C. Claim 36 Covers Non-Statutory Subject Matter ......................................... 24
`
`D. The ’374 Patent Is a Covered Business Method Patent .............................. 25
`
`III. CONCLUSION ................................................................................................. 25 
`
`i
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`
`EXHIBIT LIST
`
`U.S. Patent No. 7,904,374 (“’374 patent”)
`
`Prosecution History of the ’374 patent
`
`Certified Translation of “Futures/Option Purchasing System
`Trading Terminal Operation Guide” (“TSE”)
`
`U.S. Patent No. 5,297,031 (“Gutterman”)
`
`WO 90/11571 to Belden, et al. (“Belden”)
`
`Certificate of Translation for “Futures/Option Purchasing
`System Trader Terminal Operation Guide” (“TSE Certificate”)
`
`List of materials relied upon in the declaration of Kendyl A.
`Román
`
`Curriculum Vitae of Kendyl A. Román
`
`Deposition Transcript of Atushi Kawashima, Trading Techs.
`Int’l., Inc. v. eSPEED, Inc., Case No. 04-cv-5312, United States
`District Court, Northern District of Illinois, Eastern Division,
`dated November 21, 2005 (“Kawashima Depo. T.”)
`
`“Futures/Option Purchasing System Trading Terminal Operation
`Guide,” Tokyo Stock Exchange” (“TSE JP”)
`
`Declaration of Kendyl A. Román
`
`Lodewijk Petram, The World’s First Stock Exchange
`
`History of the American and NASDAQ Stock Exchanges
`
`Complaint for Patent Infringement
`
`
`
`TS-1001
`
`TS-1002
`
`TS-1003
`
`TS-1004
`
`TS-1005
`
`TS-1006
`
`TS-1007
`
`TS-1008
`
`TS-1009
`
`TS-1010
`
`TS-1011
`
`TS-1012
`
`TS-1013
`
`TS-1014
`
`ii
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`Office Patent Trial Practice Guide
`
`The American Heritage Dictionary of the English Language, 3d
`Ed. (1992)
`
`MPEP 2106
`
`Volusion, Inc. v. Versata Software, Inc., CBM2013-00018,
`Institution Decision, Paper No. 8
`
`Letter to Dir. Michelle K. Lee
`
`Weiss, “After the Trade is Made”
`
`TS-1015
`
`TS-1016
`
`TS-1017
`
`TS-1018
`
`TS-1019
`
`TS-1020
`
`TS-1021
`
`U.S. Patent No. 5,375,055 to Togher et al. (“Togher”)
`
`TS-1022-1032 Reserved
`
`TS-1033
`
`TS-1034
`
`TS-1035
`
`TS-1036
`
`TS-1041
`
`TS-1042
`
`TS-1043
`
`TS-1044
`
`Trading Techs. Int’l. v. CQG, No. 05-cv-4811, slip op. (N.D. Ill.
`Feb. 24, 2015)
`
`U.S. Patent No. 5,960,411 to Harman Peri et al. (“the Amazon
`one-click patent”)
`
`Dictionary of Computing (4th Ed, Oxford University Press,
`1996)
`
`Inside Macintosh, Promotional Edition
`
` Declaration of Adam Kessel
`
`Trading Technologies International, Inc. v. CQG, Inc., No. 16-
`1616, Slip Op. (Fed. Cir. January 18, 2017)
`
`United States Court of Appeals for the Federal Circuit Internal
`Operating Procedures
`
`Opening Brief of Appellants in Trading Technologies
`International, Inc. v. CQG, Inc.
`
`
`iii
`
`

`

`TS-1045
`
`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`Audio from Oral Argument before the Federal Circuit in
`Trading Technologies International, Inc. v. CQG, Inc.
`
`_________________________________
`
`Served but not filed:
`
`TS-1037 Declaration of John C. Phillips
`
`TS-1038 MPEP 2106, Rev.07.2015, November 2015 (served 9/6/2016)
`
`TS-1039 Declaration of Aaron Cohen
`
`TS-1040 Deposition Transcript of Atushi Kawashima dated June 17, 2016
`
`
`
`iv
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`
`I.
`
`INTRODUCTION
`
`The challenged claims are patent ineligible because they claim an abstract
`
`idea without an inventive concept. The claims are directed to the organization of
`
`generic information on a generic screen, using only generic programming
`
`techniques. Neither the specification nor claims of the ’374 patent recite
`
`improvements to the underlying technology used to create the claimed
`
`functionality, such as new combinations of hardware or new software that
`
`improves the basic functioning of the computer. Nor do the claims or specification
`
`disclose the use of new sources of information or new ways of analyzing that
`
`information. Instead, the challenged claims broadly recite receiving, analyzing,
`
`and displaying information at such a high level of abstraction that it is difficult to
`
`imagine the bounds of their application. Notwithstanding a non-precedential
`
`decision of the Federal Circuit involving related, but different, patents and claims,
`
`the ’374 claims are ineligible for patenting under the record of this CBM and
`
`controlling Federal Circuit precedent.
`
`Claim 36 is independently ineligible for patenting because it encompasses
`
`non-statutory subject matter—namely transitory signals. The Board correctly
`
`found at institution that a “computer readable medium” encompassed transitory
`
`signals. Nothing in the specification nor TT’s cited evidence compels departure
`
`from this meaning under BRI.
`
`1
`
`

`

`II. ARGUMENT
`
`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`
`A. The CQG Case Neither Controls the Outcome In This Case Nor
`Should It Inform The Board’s Decision
`
`
`
`During the pendency of this proceeding, the Federal Circuit issued a non-
`
`precedential decision, Trading Techs. Int’l v. CQG, Inc.,1 holding that a third-party
`
`defendant in a district court proceeding had not met its burden of demonstrating
`
`that claims in two patents related to the ‘996 patent were patent ineligible under 35
`
`U.S.C. § 101. For several reasons discussed below, the CQG decision is neither
`
`binding on the Board nor is it dispositive of the issues in this proceeding.
`
`1.
`The non-precedential CQG decision does not preclude
`Petitioners’ CBM challenge to a related patent
`CQG cannot preclude Petitioners from asserting that the challenged claims
`
`are directed to ineligible subject matter. It is well established that issue preclusion
`
`only applies to issues “actually litigated.” See, e.g., Parklane Hosiery Co. v. Shore,
`
`
`1
`2017 WL 192716 (Fed. Cir. Jan. 18, 2017) (“CQG”) (relating to U.S. Patents
`
`6,772,132 and 6,766,304) (Ex. 1042). The CQG decision has not yet been
`
`addressed by either party. However, it appears from the supplemental briefing
`
`ordered in related CBMs (e.g. CBM 2015-00179) that the Board is considering the
`
`impact, if any, of that decision on these proceedings. Accordingly, Petitioners
`
`address the case here to assist the Board in its consideration of this recent decision.
`
`2
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`439 U.S. 322, 327 n.5 (1979). The CQG case did not involve the challenged claims
`
`and the Federal Circuit has made clear that subject-matter-eligibility
`
`determinations are appropriately done on a “claim-by-claim basis” (although
`
`representative claims may be used to conduct the § 101 analysis). See
`
`Ultramercial, Inc. v. Hulu, LLC, 722 F.3d 1335, 1340 (Fed. Cir. 2013), vacated on
`
`other grounds, 134 S. Ct. 2870 (2014). As discussed below, the claims at issue in
`
`this proceeding are significantly broader than those involved in CQG. For example,
`
`no claim in the ’374 patent explicitly recites a “static price index” or a “static
`
`display of prices,” which was found to provide the “inventive step” at step 2 of
`
`Alice in CQG. See CGQ, *3.
`
`Moreover, Petitioners are entitled to have their arguments regarding the
`
`ineligibility of the ’374 patent claims assessed independently, without the
`
`reasoning and result of CQG being summarily imposed upon them: “It is a
`
`violation of due process for a judgment to be binding on a litigant who was not a
`
`party or a privy and therefore has never had an opportunity to be heard.” Parklane
`
`Hosiery, 439 U.S. at 356 n.7.
`
`Consequently, the reasoning underlying the holding in CQG does not
`
`dictate, or even inform, the outcome in this CBM proceeding. CQG is a non-
`
`precedential decision, meaning that the panel believed that the case did “not add
`
`significantly to the body of law” surrounding § 101 eligibility and that the decision
`
`3
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`is not meant to “inform the bar and interested persons other than the parties.” See
`
`Ex. 1043, IOP #10 ¶¶ 2-3 (emphasis in original); Fed. Cir. R. 32.1(b) (explaining
`
`that non-precedential opinions are those “determined by the panel issuing it as not
`
`adding significantly to the body of law”); see also Symbol Techs., Inc. v. Lemelson
`
`Med., 277 F.3d 1361, 1367 (Fed. Cir. 2002) (explaining that non-precedential
`
`decisions do not bind “future panels and subordinate tribunals”).2 At most, the
`
`decision in CQG should be read as deciding fact-dependent disagreements between
`
`the parties involved in that litigation.
`
`2.
`The evidence in this CBM is dramatically different
`than the evidence in CQG
`A close examination of the CQG case shows that the facts and arguments
`
`involved in that case are far-removed from the present proceeding. For example,
`
`both the Federal Circuit and the district court premised their Alice step 1
`
`
`Notably, non-precedential decisions do not receive vetting from all members
`2
`
`of the Federal Circuit to determine whether the opinion “potential[ly] conflicts
`
`[with] other prior opinions of the court.” See id., IOP # 10 ¶ 5. Because the opinion
`
`in CQG has not received the vetting that a precedential opinion receives, and
`
`because a petition for rehearing has not yet been filed or heard, there remains a
`
`possibility that the opinion of the panel in CQG may not yet be the final word from
`
`the Federal Circuit in that case.
`
`4
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`conclusion on TT’s assertion that the challenged claims were directed to solving a
`
`technical problem that arose only “in the context of computerized trading.” CQG,
`
`*2. As the Federal Circuit explained, the asserted claims in that case passed Alice
`
`step 1 because “the graphical user interface system of these two patents is not an
`
`idea that has long existed.” Id., *3. The Federal Circuit’s conclusion is
`
`unsurprising as the appellee in that case did not present evidence, or even argue,
`
`that the method of organizing information described in the specification of the
`
`asserted patents was known. See generally Ex. 1044, 20-32. Indeed, at oral
`
`argument in that case, the appellee essentially conceded that it had not produced
`
`any evidence of a “long-known practice that allowed this information to be
`
`provided in this fashion when you were doing trading on the trading floor.” See Ex.
`
`1045, 11:45-12:26. Instead, the appellee broadly asserted that any patent claiming
`
`methods of organizing and displaying information was necessarily abstract. See id.;
`
`see also Ex. 1044, 27 (arguing that “[t]he ‘detail’ that the claimed display of
`
`market data aligns dynamic bids and asks with a static price index does not
`
`change” the conclusion that the claims do not pass Alice step 1).
`
`In stark contrast, Petitioners have produced significant and substantial
`
`evidence that both the problem the ’374 patent claims to have solved and the
`
`purported solution to that problem were well-known in the pre-computer trading
`
`world. Specifically, Weiss describes a “Specialist’s Book,” which organizes
`
`5
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`information in a nearly identical way as the ’374 patent to solve the problem of
`
`fast-moving trades before the computer era. A trader would use this specialist book
`
`to “quickly” see bid and ask amounts against a static set of prices:
`
`Offers to buy (i.e. bid
`prices)
`
`Static Price Column
`
`Offers to sell (i.e. ask
`prices)
`
`
`
`
`
`
`
`
`
`Gutterman similarly demonstrates a pre-electronic trading analog,
`
`describing a system for arranging and displaying a broker’s deck on a touchscreen
`
`display that arranges bids and asks along a price axis in the same format as that
`
`described in the ’374 patent. See, e.g., Ex. 1004, 6:33-7:14; 12:1-56; FIGS. 2b, 2d.
`
`This and other evidence presented by Petitioners shows that the traders had already
`
`long-solved the known problems inherent in accurately trading in a fast-moving
`
`market. The ’374 patent’s alleged contribution was simply putting these well-
`
`known methods on a computer to facilitate electronic trading, but even that wasn’t
`
`6
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`novel as other prior art of record applies this well-known arrangement in the field
`
`of electronic trading. See, e.g., Ex. 1003, 0137.
`
`
`
`Although § 101 eligibility is a question of law, it is “rife with underlying
`
`factual issues.” Ultramercial, 722 F.3d at 1339. The § 101 inquiry asks,
`
`specifically, whether a patent claims an abstract idea that was well-known—an
`
`inherently factual inquiry. See Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct.
`
`2347, 2356–57 (2014) (stating that the category of abstract ideas embraces “long
`
`prevalent” economic practices and “longstanding commercial practice[s]” that use
`
`only “conventional steps”). Had Petitioners’ evidence been before the Federal
`
`Circuit in CGQ, it may well have changed the outcome in that case at Alice step 1.
`
`See CGQ, *2 (giving weight to the lack of evidence of a “pre-electronic trading
`
`analog” and the lack of evidence “that the graphical user interface system of these
`
`two patents is not an idea that has long existed”).
`
`
`
`Similarly, at Alice step 2, which asks whether anything in the claims adds
`
`an “inventive step,” the Federal Circuit likely would have reached a different
`
`conclusion if it had had the benefit of the evidentiary record in this proceeding. As
`
`with step 1 in CGQ, the Federal Circuit’s step 2 analysis rested on a conclusion
`
`refuted by the evidence presented in this proceeding. Specifically, the Federal
`
`Circuit found that the “static price index” in the claims at issue in CQG solved an
`
`alleged problem specific to electronic trading “as compared to conventional
`
`7
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`computer implementations of known procedures.” CGQ, *3. As mentioned above,
`
`no claim challenged in this CBM proceeding recites a “static price index.” Indeed,
`
`TT does not even allege in this proceeding that the “static price axis” constitutes an
`
`inventive concept, but rather asserts that the general “structure, function, and
`
`makeup” of a GUI, whatever that means, is an inventive concept. (Response, 34-
`
`36.) Accordingly, because TT is unable to articulate a specific inventive concept,
`
`and because the so-called inventive concept that it relied on in CQG is shown by
`
`the evidence of record in this proceeding to be non-inventive, the Federal Circuit
`
`would have found in CQG that TT’s claims failed step 2, and so must the Board
`
`here.
`
`
`
`3.
`As the Board recognized, the ‘374 patent claims are
`broader, and even more abstract, than the claims at issue in CQG
`
`In its response, TT attempts to cast the challenged claims narrowly, asserting
`
`that like the claims at issue in CQG, the challenged claims “specify[] how in
`
`particular the GUI is constructed, including its makeup, structure, and
`
`functionality.” (Response, 17.) But even a cursory comparison of the claims
`
`involved in CQG and the ’374 patent claims shows that this is incorrect. The
`
`exemplary claim in CQG recites “a method for displaying market information” that
`
`lists four steps detailing how various types of information was to be displayed. See
`
`CQG, *1. For example, the CQG claim requires “dynamically displaying” a “first
`
`8
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`indicator . . . in a bid display region” and a “second indicator . . . in an ask display
`
`region” corresponding to price levels “along the common static price axis.” See
`
`id., *2. The CQG claim further details that the “bid and ask display regions” be
`
`displayed “in relation to fixed price levels positioned along the common static
`
`price axis” such that the bid and ask prices “move[] . . . relative to the common
`
`static price axis.” See id.
`
`In stark contrast, the ’374 patent exemplary claim contains none of that
`
`detail. Rather, it recites “[a] method for facilitating trade order entry” comprising
`
`primarily steps for receiving and analyzing information. See ’374 patent, 11:39-
`
`40. The claim has only one “displaying” step in which generic “graphical
`
`locations” are displayed along a generic “axis.” Id., 11:50–55. As the Board
`
`correctly noted in the Institution Decision (“ID”), there is no requirement that any
`
`price information is displayed, nor is there any recitation of a “static price” axis or
`
`even a “price” axis: the ’374 claims “do not require that the graphical locations
`
`display the price levels that are mapped to them, or other information, or even any
`
`indication as to which of those graphical locations corresponds to bids and which
`
`correspond to asks.” (Paper 11, 11–12.) Unlike the CQG claims, the ’374 claims
`
`do not “provide any indication to a user of market information, such as price, order
`
`quantity, or order type” but can “simply could be ‘black boxes’ with price values
`
`associated with them, and no information provided to the user.” Id. at 12. Indeed,
`
`9
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`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`the Board correctly noted that the ’374 patent claims “are drafted at such a high
`
`level of abstraction that it is difficult to imagine the bounds of their application.”
`
`(Paper 11, 11.)
`
`In the ID, the Board correctly found that “statements from courts in related
`
`proceedings” involving the patents at issue in CQG “are of little use” in analyzing
`
`the challenged claims “as the claim scope is different in the ’374 patent.” (Paper
`
`11, 19.) For the same reason, any possible relevance of the Federal Circuit’s CQG
`
`decision is further eroded because, as the Board has recognized, the claims of the
`
`’374 patent are broader, and even more abstract, than the claims at issue in CQG.
`
`Thus, the Board should not shortcut a full analysis of the issues simply because the
`
`Federal Circuit found that another party in another case failed to meet its burden as
`
`to invalidity of other patent claims in a non-precedential opinion.
`
`B. Controlling Federal Circuit Authority Compels a Conclusion That
`the Challenged Claims Are Patent Ineligible
`
`
`As explained above, the Federal Circuit’s non-precedential decision in CQG
`
`is not binding on the Board, is not final in that it may still be appealed or reheard,
`
`and was not subject to the rigorous vetting process that precedential decisions
`
`undergo. When the CQG decision is understood in light of these important
`
`distinctions, and based on the evidence and arguments of record in this proceeding,
`
`along with application of precedential Federal Circuit case law, it is clear that the
`
`10
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`‘374 patent claims are patent ineligible. The precedential Federal Circuit opinions
`
`discussed below are binding precedent that must be followed and are dispositive on
`
`the issues presented in this CBM.
`
`
`1.
`
`Electric Power Group is dispositive
`
`
`
`In Electric Power Group, LLC v Alstom S.A., et al., the Federal Circuit
`
`found claims nearly indistinguishable from the challenged claims directed to
`
`patent-ineligible subject matter. 830 F.3d 1350, 1353 (Fed. Cir. 2016). The
`
`Federal Circuit’s precedential Electric Power decision thus compels a finding that
`
`the challenged claims are unpatentable.
`
`In Electric Power, the Federal Circuit considered whether representative
`
`claim 12 was directed to ineligible subject matter. Claim 12 recited in great detail
`
`“[a] method of detecting events on an interconnected electric power grid”
`
`comprising: (1) receiving data from many sources; (2) “detecting and analyzing
`
`events in real-time from the plurality of data streams”; (3) “displaying the event
`
`analysis results and diagnoses of events and associated ones of the metrics from
`
`different categories of data and the derived metrics in visuals, tables, charts”; (4)
`
`“displaying concurrent visualization of measurements from the data streams and
`
`the dynamic stability metrics directed to the wide area of the interconnected
`
`electric power grid”; (5) “accumulating and updating the measurements”; and (6)
`
`11
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`“deriving a composite indicator of reliability that is an indicator of power grid
`
`vulnerability.”
`
`
`
`Despite the length and complexity of the claim, the Federal Circuit distilled
`
`it into the abstract idea of “collecting information, analyzing it, and displaying
`
`certain results of the collection and analysis.” Elec. Power, 830 F.3d at 1353. As
`
`the Federal Circuit explained, “Information as such is an intangible” and thus the
`
`Court treated each of “collecting information, including when limited to a
`
`particular content,” “analyzing information by steps people to through in their
`
`minds, or by mathematical algorithms,” and “merely presenting the results of
`
`abstract processes of collecting and analyzing information, without more” as an
`
`ineligible abstract idea. See id. at 1353–54.
`
`At Alice step 2, the Court found no inventive step that transformed the
`
`abstract idea into patent-eligible subject matter. The “lengthy” enumeration of
`
`different types of information and different methods of display were insufficient to
`
`transform the claim because “merely selecting information, by content or source,
`
`for collection, analysis, and display does nothing significant to differentiate a
`
`process from ordinary mental processes, whose implicit exclusion from § 101
`
`undergirds the information-based category of abstract ideas.” Id. at 1355. In the
`
`end, “[n]othing in the claims, understood in light of the specification, requires
`
`anything other than off-the-shelf, conventional computer, network, and display
`
`12
`
`

`

`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`technology for gathering, sending, and presenting the desired information.” Id.
`
`Those findings apply with equal force to the ’374 patent claims.
`
`TT attempts to distinguish Electric Power by arguing that, unlike the claims
`
`at issue there, the challenged claims “recite the process of constructing the
`
`interface.” (Response, 44.) As noted above, this assertion mischaracterizes the
`
`’374 patent, which broadly claims displaying generic “graphical locations” along a
`
`generic “axis,” making the challenged claims considerably less specific than those
`
`in Electric Power.
`
`TT’s arguments also mischaracterize the claims involved in Electric
`
`Power—confusing actual display technology with the organization of information
`
`on a generic screen. Electric Power contemplated that the former, “such as
`
`identifying a particular tool for presentation,” may be enough to render a claim
`
`eligible. Id. at 1354. TT hangs its hat on this statement, arguing that the GUI
`
`disclosed is such a tool. (Response, 44.) But Electric Power was clear to
`
`distinguish how information is displayed on a generic display screen (such as
`
`claimed in the ’374 patent) from actual improvements in display technology, the
`
`former being clearly patent ineligible.
`
`In Electric Power, several elements required a specific method of display—
`
`as the Federal Circuit noted the claims arguably required “time-synchronized
`
`display” of “concurrent visualization of two or more types of information.” 830
`
`13
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`F.3d at 1355. Nonetheless, because “nothing in the patent contains any suggestion
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`that the displays needed for that purpose are anything but readily available,” the
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`recitation of a specific way of displaying information was not enough. See id. The
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`selection and organization into “human comprehensible” forms “useful for users”
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`“by itself does not transform otherwise-abstract processes of information collection
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`and analysis.” Id.
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`As in Electric Power, the challenged claims do “not require any
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`nonconventional computer, network, or display components, or even a non-
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`conventional and non-generic arrangement of known, conventional pieces, but
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`rather merely call for performance of the claimed information collection, analysis,
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`and display functions on a set of generic computer components and display
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`devices.” See id. The ’374 specification expressly states that the recited functions
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`can be accomplished using conventional components and programming techniques.
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`See, e.g., ’374 patent, 3:64–4:18. In fact, the specification makes it quite clear that
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`no new technology is involved, stating that the so-called invention can be
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`implemented “on any existing or future terminal or device with the processing
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`capability to perform the functions described herein” and that “[t]he present
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`invention is not limited by the method used to map the data to the screen display.”
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`See ’374 patent, 3:64–4:18; id. 4:66–67. Nothing in the specification describes any
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`particular display technology, instead referring to where the information is
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`displayed generically as a “screen.” See, e.g., ’374 patent, 5:5–7.
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`In short, like the claims in Electric Power, the challenged claims do nothing
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`more than recite methods of collecting, analyzing, and displaying information (and
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`even then, only generic “graphical locations”) using generic computer components.
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`Rather than reciting any actual, concrete, and specific improvements to display
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`technology, the claims are drafted at such a high level of abstraction that “it is
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`difficult to imagine the bounds of their application.” (Paper 11, 11.) Such broad,
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`abstract claims to “selecting information, by content or source, for collection,
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`analysis, and display does nothing significant to differentiate a process from
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`ordinary mental processes, whose implicit exclusion from § 101 undergirds the
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`information-based category of abstract ideas.” Id. at 1355. Thus, the challenged
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`claims are unpatentable.
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`2.
`Ameranth is dispositive
`In Ameranth, the Federal Circuit found ineligible claims that required a
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`particular graphic user interface on a generic computer screen. Accordingly,
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`Ameranth confirms that the challenged claims are unpatentable.
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`The exemplary claim in Ameranth recited an “information management and
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`synchronous communications system for generating and transmitting menus,
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`comprising” generic computer components and a “graphic user interface” which
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`required a particular arrangement and operation of menus. See Ameranth, 842 F.3d
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`at 1234. Like the challenged claims, the recited goal of the patents involved in
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`Ameranth was to provide a better user interface that was fast, intuitive, and easily
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`used. See, e.g., U.S. Pat. 6,384,850, 2:49-55 (stating that an object of the invention
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`is to provide an “improved information management and communications system
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`and method which facilitates user-friendly and efficient generation of
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`computerized menus”). And, like the challenged claims, the Ameranth claims
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`recited a particular way of arranging information for display on a screen. See id.,
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`14:48–15:11 (exemplary claim 1, covering a particular way of displaying menus on
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`the screen). Nonetheless, the Federal Circuit found the claims patent ineligible.
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`Throughout its response, TT argues that the challenged claims are directed
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`to a particular solution to a particular technical problem—the problem being that
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`previous GUIs were not as user friendly. (See Response, 13-18.) TT also argues
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`that the supposedly improved GUI improves the functioning of the computer, and
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`is thus patent eligible. (See Response, at 52–55.) Both of these arguments are
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`undercut by Ameranth. There, the Court found that the claims, which covered a
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`specific way of organizing information on a screen, do “not claim a particular way
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`of programming or designing the software to create menus that have these features,
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`but instead merely claim the resulting systems” and “are not directed to a specific
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`improvement in the way computers operate.” Ameranth, 842 F.3d at 1241. Instead,
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`the claims in Ameranth were “directed to certain functionality—here, the ability to
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`generate [a graphic user interface] with certain features.” Ameranth, 842 F.3d at
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`1241.
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`Here, as in Ameranth, the claims are directed only to functionality, rather
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`than any improved way of programming that functionality. The exemplary claim
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`broadly covers any functionality involving the display of generic “graphical
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`locations” along a generic “axis,” mapping price information to the graphical
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`locations (without requiring any actual display of prices), and sending a trade
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`based on user action. Id., 11:50–55. As noted above, all of these features are
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`created using generic programming techniques and are displayed on a generic
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`screen. Indeed, the specification itself notes that the functionality is achieved
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`“through simple algorithms and mapping tables” and can be “done by any
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`technique known to those skilled in the art.” ’374 patent, 4:60–67; Cf. McRO, Inc.
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`v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1315 (Fed. Cir. 2016) (finding
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`claims directed to specific programming and rules for the automation of tasks
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`previously done by humans patent eligible because “the automation goes beyond
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`merely organizing existing information into a new form or carrying out a
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`fundamental economic practice”) (emphasis added and internal quotation marks
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`and alterations omitted). The claimed functionality alone, without any underlying
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`improvements to the technology used to create that functionality, is insufficient to
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`impart patent eligibility.
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`This is particularly true where, as here, the claimed functionality replicates
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`something previously done on pencil and paper. In Ameranth, the Federal Circuit
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`found significant that the claimed functionality was shown to be previously
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`performed using pencil and paper: “menus were commonly printed on paper, and
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`that it was known to use pens in the hospitality industry.” 842 F.3d at 1241. So
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`too he