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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`____________
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioners,
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
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`____________
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`Case CBM2016-00051
`Patent No. 7,904,374
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`___________
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`PETITIONER’S REPLY TO
`PATENT OWNER’S ADDITIONAL SUBMISSIONS
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`Patent Owner’s (TT’s) Additional Submissions (Paper 29) (“Subs.”)
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`demonstrate why CQG should not extend beyond the two patents and the minimal
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`record in that appeal. As TT acknowledges, CQG is nonprecedential and “does not
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`add significantly to the body of law.” (Subs., 5.) But other than quoting the opinion
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`and making vague statements about GUIs—such as its magical incantation of
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`“structure, make-up, and functionality”—TT cannot articulate a meaningful reason
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`to apply CQG to the ’374 claims. Thus, the Board should reject TT’s arguments.
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`First, TT fails to articulate a valid reason to apply CQG to the ’374.
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`Although TT offers a conclusory assertion that “the level of specificity between the
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`‘374 patent and ‘304 patent is similar,” (at 3), it provides no side-by-side
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`comparison and instead just enumerates generic UI elements that appear in both
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`patents. TT fails to mention that, unlike the ’304, the ’374 claims lack a “static”
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`limitation—the key limitation the CAFC relied in finding the former patentable.1
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`TT’s position here is essentially that claims directed to the “structure,
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`makeup, and functionality” of a GUI are patent-eligible. (Subs., 1–2.) But the
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`Board rejected that in finding unpatentable the related ’411 patent. In fact, because
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`1 To be clear, TT has never argued in related CBMR proceedings that a “static”
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`claim element renders its claims patentable, presumably because that admission
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`would have doomed patents such as the ’374, which lack such a limitation.
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`Attorney Docket No. 41919-0013CP1
`the ’374 claims lack a “static” limitation, they are much closer to the unpatentable
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`’411 claims. (See CBM 2015-00181, Paper 138 at 18) (“The [CQG] decision relied
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`upon a feature not required by claim 1 of the ’411 patent— a static price axis”).
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`Moreover, as Petitioners argued in Reply, the claimed structure and make-up
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`is nothing more than displaying market data in a predictable manner using well-
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`known UI techniques such as “point-and-click.” (Reply, 22.) Arranging data on a
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`screen combined with conventional GUI operation does not confer eligibility.
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`TT further argues that the “improvement for the ‘374 patent is speed,
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`visualization and usability.” (Subs., 4.) This argument incorrectly suggests that the
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`CQG court found the claim elements here necessarily improve over prior user
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`interfaces. The court found no such thing—that decision was based on the record
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`in that case, which lacked any evidence of prior user interfaces. By contrary, here
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`there is ample evidence of prior user interfaces sufficient to show that the ’374
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`claims don’t improve on anything. (See, e.g., Petition, 13–15.) And, again, to the
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`extent the CAFC did find a claimed feature to represent an improvement—on the
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`threadbare record presented to it—it was the “static” limitation not present here.
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`CQG at *3 (“The court identified the static price index as an inventive concept that
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`allows traders to more efficiently and accurately place trades using this electronic
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`trading system.”) (emphasis added).
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`Second, TT’s Submissions fail to address the compelling evidence in this
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
`record and Petitioners’ arguments in the Reply (Paper 23)—specifically, evidence
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`demonstrating that the problem the patent claims to solve and the purported
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`solution were well-known in the pre-computer trading world (id. at 20–21).
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`Finally, the rapidity of the CAFC’s decision in CQG and the fact that it is
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`nonprecedential cut against extending CQG’s holding to the ’374. TT’s attempt to
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`generalize CQG and apply it to other GUIs is belied by its concession that CQG
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`“does not add significantly to the body of law.” (Subs., 5.) CQG should not be
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`applied beyond its specific facts. And, CQG is currently being considered for en
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`banc hearing. One reason CQG may have been designated non-precedential was
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`the Court was cognizant of the very limited record in that case, which did not lend
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`itself to drafting an opinion that added significantly to the 101 jurisprudence.
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`Nevertheless, CQG does provide useful guidance that the “threshold level of
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`eligibility is often usefully explored by way of the substantive statutory criteria of
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`patentability, for an invention that is new, useful and unobvious is more readily
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`distinguished from the generalized knowledge that characterizes ineligible subject
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`matter.” CQG at *8. This is in accord with cases like Ultramercial and Internet
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`Patents. The substantial prior art record herein—not present in CQG—supports a
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`finding that the ’374 claims are unpatentable.
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`In short, with different parties, a different patent, and a different record, the
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`Board can and should reach a different result than CQG for the ’374 Patent.
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`3
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`Dated: March 24, 2017
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
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`Respectfully submitted,
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`/John C. Phillips/
`John C. Phillips, Reg. No. 35,322
`Fish & Richardson, P.C.
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`Attorney for Petitioners
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`4
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`Case CBM2016-00051
`Attorney Docket No. 41919-0013CP1
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`CERTIFICATE OF SERVICE
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`Pursuant to 37 CFR §§ 42.6(e)(4) and 42.6(e)(4)(iii), the undersigned certifies
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`that on March 24, 2017, a complete and entire copy of this Petitioner’s Reply to
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`Patent Owner’s Additional Submission was provided via email to the Patent Owner,
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`by serving the correspondence address of record as follows:
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`Leif R. Sigmond, Jr., Cole B. Richter,
`Michael D. Gannon and Jennifer M. Kurcz
`McDonnell, Boehnen, Hulbert & Berghoff LLP
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`Erika H. Arner, Joshua L. Goldberg, Kevin Rodkey,
`Rachel L. Emsley and Cory C. Bell
`Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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`Steven F. Borsand, Jay Q. Knobloch
`Trading Technologies International, Inc.
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`Email: sigmond@mbhb.com
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` richter@mbhb.com
` gannon@mbhb.com
` kurcz@mbhb.com
` erika.arner@finnegan.com
` joshua.goldberg@finnegan.com
` kevin.rodkey@finnegan.com
` rachel.emsley@finnegan.com
` cory.bell@finnegan.com
` tt-patent-cbm@tradingtechnologies.com
` Trading-Tech-CBM@finnegan.com
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`/Diana Bradley/
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`Diana Bradley
`Fish & Richardson P.C.
`60 South Sixth Street, Suite 3200
`Minneapolis, MN 55402
`(858) 678-5667
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`
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