Paper No.
`Filed: March 6, 2015
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`UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
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`Case CBM2014-00135
`Patent 6,772,132
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`Patent Owner’s Response
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`IBG 1034
`CBM of U.S. Patent No. 7,693,768
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`0001
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`I.(cid:3)
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`II.(cid:3)
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`Case No. CBM2014-00135
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`TABLE OF CONTENTS
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`INTRODUCTION ....................................................................................................... 1(cid:3)
`
`THE CLAIMS ARE DIRECTED TO PATENTABLE
`TECHNOLOGY—A GUI TOOL ........................................................................... 2(cid:3)
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`A.(cid:3)
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`The Patented Invention Solved Technical Problems with Prior
`GUIs .................................................................................................................... 3(cid:3)
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`1.(cid:3)
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`2.(cid:3)
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`3.(cid:3)
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`The Conventional GUIs ....................................................................... 3(cid:3)
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`The Problem with Conventional GUIs: Missing
`Intended Prices ....................................................................................... 5(cid:3)
`
`The Claimed Solution to the Problem: A New GUI
`That Improved Speed, Accuracy, and Usability ................................ 6(cid:3)
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`B.(cid:3)
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`The Claimed Features and Functionality of the Improved GUI
`Are an Inventive Concept, Not Conventional ............................................ 12(cid:3)
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`1.(cid:3)
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`The Claimed GUI Features Were the Inventive
`Contribution .......................................................................................... 15(cid:3)
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`C.(cid:3)
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`A New GUI Is New Technology .................................................................. 17(cid:3)
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`III.(cid:3) THE CURRENT § 101 FRAMEWORK ................................................................ 19(cid:3)
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`IV.(cid:3) THE CLAIMS ARE PATENT ELIGIBLE BECAUSE THERE IS
`NO PREEMPTION CONCERN ........................................................................... 20(cid:3)
`
`A.(cid:3)
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`The Claims Fail to Impermissibly Preempt Because There Is
`Evidence that Other Ways to Practice the Abstract Idea Using
`a Computer Exist ............................................................................................. 21(cid:3)
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`1.(cid:3)
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`2.(cid:3)
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`3.(cid:3)
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`Non-Infringing TT Product that Allows Placing a Trade
`Order in Response to Observing Market Data ............................... 22(cid:3)
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`Non-Infringing TD Product that Allows Placing a
`Trade Order in Response to Observing Market Data .................... 23(cid:3)
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`Non-Infringing CQG Product that Allows Placing a
`Trade Order in Response to Observing Market Data. ................... 24(cid:3)
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`i
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`0002
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`V.(cid:3)
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`Case No. CBM2014-00135
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`4.(cid:3)
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`Non-Infringing ORC Product that Allows Placing a
`Trade Order in Response to Observing Market Data .................... 27(cid:3)
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`UNDER A PROPER APPLICATION OF THE ALICE TEST,
`THE CLAIMS ARE ELIGIBLE UNDER 35 U.S.C. 101 ................................... 27(cid:3)
`
`A.(cid:3)
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`B.(cid:3)
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`The Claims Are Not Directed to the Abstract Idea Adopted in
`the Institution Decision .................................................................................. 29(cid:3)
`
`The Claims Recite an Inventive Concept Other Than an
`Abstract Idea ..................................................................................................... 33(cid:3)
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`VI.(cid:3) THE PTAB SHOULD NO LONGER ADOPT THE PETITION’S
`§ 101 ANALYSIS ........................................................................................................ 35(cid:3)
`
`A.
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`(cid:3)
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`B.
`(cid:3)
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`C.
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`(cid:3)
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`There Is No Evidence That the Claims Recite a Conventional
`GUI or an Abstract Idea ................................................................................. 35(cid:3)
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`Software Inventions Are Patentable Even If Performed On a
`Generic Computer ........................................................................................... 37(cid:3)
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`New Case Law Confirms That the Claims are Patent Eligible ................. 39(cid:3)
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`VII.(cid:3) THE PTAB SHOULD DISMISS THE PROCEEDING BECAUSE
`IT LACKS JURISDICTION .................................................................................... 42(cid:3)
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`A.
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`(cid:3)
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`The Decision Misapplied the Technological Invention Test .................... 46(cid:3)
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`1.
`(cid:3)
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`2.
`(cid:3)
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`The Claim Limitations Recite Novel and Nonobvious
`Technology ............................................................................................ 46(cid:3)
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`a.
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`(cid:3)
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`The Claims Recite a Technological Feature That
`Is Novel and Nonobvious ................................................ 47(cid:3)
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`The Claims Solve Technical Problems with a Technical
`Solution .................................................................................................. 50(cid:3)
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`ii
`0003
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`Cases
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`Case No. CBM2014-00135
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`TABLE OF AUTHORITIES
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` Page(s)
`
`Alice Corp. Pty. v. CLS Bank Int'l,
`134 S. Ct. 2347 (2014) ................................................................................................. passim
`
`Bancorp Servs., L.L.C. v. Sun Life Assur. Co. of Canada (U.S.),
`687 F.3d 1266 (Fed. Cir. 2012) ........................................................................................ 28
`
`In re Bilski,
`545 F.3d 943 (Fed. Cir. 2008)(en banc), aff’d on other grounds, Bilski v.
`Kappos, 130 S. Ct. 3218 (2010) ......................................................................................... 28
`
`Bilski v Kappos,
`561 U.S. 593 (2010) ........................................................................................................... 37
`
`DDR Holdings, LLC v. Hotels.com, L.P.,
`773 F.3d 1245 (Fed. Cir. 2014) .................................................................................. passim
`
`Diamond v. Chakrabarty,
`447 U.S. 303 (1980) ........................................................................................................... 19
`
`Funk Bros. Seed Co. v. Kalo Inoculant Co.,
`333 U.S. 127 (1948) ........................................................................................................... 20
`
`Intellectual Ventures I LLC v. Mfrs. & Traders Trust Co.,
`2014 WL 7215193 (D. Del. Dec. 18, 2014) ................................................................... 41
`
`Mayo Collaborative Servs. v. Prometheus Labs.,
`132 S. Ct. 1289 (2012) .......................................................................................... 19, 29, 33
`
`MCM Portfolio LLC v. Hewlett-Packard Co.,
`No. 15-1091 (Fed. Cir.) ..................................................................................................... 43
`
`OpenTV, Inc. v. Netflix Inc.,
`No. 14-cv-01525-RS, 2014 WL 7185921 (N.D. Cal. Dec. 16, 2014) ......................... 41
`
`Parker v. Flook,
`437 U.S. 584 (1978) ........................................................................................................... 37
`
`iii
`0004
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`Smartflash LLC v. Apple, Inc.,
`Dkt. 423 at 18, 20 (E.D. Tex. Jan. 21, 2015) ................................................................. 41
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`Case No. CBM2014-00135
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`Trading Techs. Inst’l, Inc. v. eSpeed, Inc.,
`595 F.3d 1340 (Fed. Cir. 2010) ................................................................................... 5, 15
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`Trading Techs. Int’l, Inc. v. CQG,
`05-cv-4811 (N.D. Ill. Feb. 24, 2015) ......................................................................... 2, 15
`
`Trading Techs. Int’l. Inc., v. eSpeed, Inc. et al.,
`Case No. 04-cv-5312, Dkt. 1140 (Jan. 3, 2008) ............................................................ 16
`
`Ultramercial v. Hulu, LLC,
`772 F.3d 709 (2014) .................................................................................................... 20, 38
`
`Statutes
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`AIA § 18(d) ............................................................................................................................... 46
`
`35 U.S.C. § 101 ................................................................................................................... passim
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`35 U.S.C. § 326(e) .................................................................................................................... 36
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`Other Authorities
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`37 C.F.R. § 42.301(b) ................................................................................................. 46, 50, 51
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`79 Fed. Reg. 241, 74635 (Dec. 16, 2014) ............................................................................. 22
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`U.S. Const. art. III, § 1 ............................................................................................................ 42
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`iv
`0005
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`I.
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`INTRODUCTION
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`Case No. CBM2014-00135
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`The claimed invention is directed to patent-eligible subject matter—the
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`technical features of an innovative graphical user interface (GUI). Claims to such
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`technological improvements are patent eligible under both steps of the two-part test
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`set forth in Alice. First, the claimed technical features are directed to a specific tool,
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`not the purported abstract idea of “placing an order for a commodity based on
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`observed market information, as well as updating the market information.”1 Indeed,
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`there are hundreds—if not thousands—of other ways to place a trade order in
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`response to observing market data without utilizing the claimed invention, making
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`clear that the purported abstract idea is not preempted by the claims. As such, the
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`claimed invention is not directed to an abstract idea. Second, the claimed elements,
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`either individually or as a combination, ensure that the claims in practice amount to
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`significantly more than a patent on the purported abstract idea. As such, the claimed
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`invention sets forth the inventive concept to satisfy the second prong of the two-part
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`Alice test.
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`A district court recently concluded that the claims of the ’132 patent are eligible
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`under both prongs of the Alice framework because the claims are not directed to an
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`1 For purposes of this response, TT will use the purported abstract idea set forth by
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`the district court and PTAB, but any analysis and conclusions apply equally to the
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`more general abstract idea set forth by the Petitioner.
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`1
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`0006
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`abstract idea and, even if they were, the claims recite an inventive concept that ensures
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`that the patent is directed to more than the abstract idea itself. The district court used
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`the same abstract idea in this analysis as the Board. The district court found TT’s
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`claims not directed to an “abstract idea,” but technological in nature, “solv[ing]
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`problems of prior graphical user interface devices (GUIs), in the context of
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`computerized trading, relating to speed, accuracy and usability.” Ex. 2200, Trading
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`Techs. Int’l, Inc. v. CQG, 05-cv-4811 (N.D. Ill. Feb. 24, 2015) (Dkt. 1073). The district
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`court held that TT’s claims are rooted in computer technology—particular features
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`and functionality of a specialized GUI (i.e., a graphical device/tool) that happens to
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`be used for placing trade orders and displaying market information. Id. at 5-7. As
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`such, the claims here have no issues of eligibility under § 101. Moreover, because the
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`claimed technology improves prior technology by “solv[ing] problems of prior
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`[GUIs], in the context of computerized trading, relating to speed, accuracy and
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`usability,” there is no standing to challenge the patent under AIA Section 18. Id. at 6.
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`II.
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`THE CLAIMS ARE DIRECTED TO PATENTABLE
`TECHNOLOGY—A GUI TOOL
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`TT’s claims are directed to patentable subject matter in the form of technical
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`features of an innovative GUI tool. The claimed GUIs are highly specialized tools
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`used for mission-critical applications. Ex. 2201, Thomas Report, ¶¶ 19-31. Although
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`inventiveness is not required to pass muster under § 101, the inventiveness in all of
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`the claims rests upon the combination of particular features of a GUI tool, not
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`2
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`0007
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`practicing a method of doing business or data processing. While the claimed tool
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`could be used to implement trading strategies (e.g., buy low/sell high), the claims are
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`not directed to any trading strategy. Instead, the record is clear that the claims are
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`directed to a specific improvement to GUIs used to conduct a trade on a computer.
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`These types of improvements are patent eligible under 35 U.S.C. § 101.
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`A.
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`The Patented Invention Solved Technical Problems with Prior
`GUIs
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`The claims are directed to a technological improvement. The inventor, using
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`the conventional trading GUIs, identified a problem (an order entered at an
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`unintended price). Then, he created a new GUI to solve that problem. Id.
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`1.
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`The Conventional GUIs
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`Prior to the invention, there was well-accepted conventional wisdom regarding
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`the design of an order-entry GUI. Ex. 2201 at ¶¶ 15, 19-27. Electronic order tickets,
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`in which different parameters of the order were filled out by the user, were an
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`example of one type of conventional GUI that provided a high level of accuracy but
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`required a sacrifice of speed. Id. at ¶ 19.
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`Prior art GUIs, like the one in Figure 2 of the patents (shown below with
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`annotations), were an example of another type of conventional GUI that performed
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`faster than the order tickets:
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`3
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`Id. at ¶ 21. In Figure 2 style screens, the best bid and best ask price are displayed at
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`fixed locations on the screen and those numbers change in response to every change
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`in the inside market. Id. at ¶ 22-23. The other displayed bid and ask prices similarly
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`change based on updates received from the market. Id. Therefore, the displayed prices
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`are constantly changing in response to changes in the market. Id. These types of tools
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`fix the inside market in a specified location. Id. Figure 2 provides an example of one
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`design of such a prior art style screen. Other designs of such style screens (where the
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`inside market is displayed in a fixed location) existed and continue to be developed
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`and commonly used today. Id. at ¶¶ 24-28.
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`Those of ordinary skill in the art at the time of the invention viewed Figure 2
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`style screens as satisfying well-understood design criteria and providing numerous
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`advantages. Id. at ¶¶ 24-28. For example, fixing the display of the inside market at a
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`designated location allows a user to easily locate and focus on the most important
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`information—the inside market. Id. at ¶ 25. At any given time, a trader could look at
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`the prior art tool and immediately know the current state of the market. Id. These
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`4
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`tools also allow the trader to rapidly and accurately enter market orders (orders made
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`at the inside market prices) by clicking on the location for the best bid or best ask
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`prices. Id. Moreover, these tools conserve precious screen real estate. Id. at ¶ 26.
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`2.
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`The Problem with Conventional GUIs: Missing Intended
`Prices
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`One of the inventors (Mr. Brumfield), however, encountered a problem with
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`this type of tool. Id. at ¶ 31. He was focused on entering orders at particular prices, as
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`opposed to market-type orders. Ex. 2011, eSpeed Trial Tr., 682-706. If Mr. Brumfield
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`wanted to use fast single action order entry on the prior art tools to enter an order at a
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`particular price level, he sacrificed accuracy for speed. Id. In particular, he risked
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`missing his intended price as a result of prices changing under his pointer right at the
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`time he clicked on a cell. Id. The following example slide from the tutorial illustrates
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`the problem:
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`5
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`Ex. 2202, 101 Hearing Presentation, PTX 6045. This problem with inaccuracy is
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`described in the patent. See, e.g., Ex. 1001, 2:55-3:4.
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`3.
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`The Claimed Solution to the Problem: A New GUI That
`Improved Speed, Accuracy, and Usability
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`To address this problem, Mr. Brumfield conceived the design of a novel and
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`nonobvious GUI tool (ultimately covered by the claims of the patent) that improved
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`upon the speed and accuracy of the prior art GUIs for orders intended to be sent at
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`particular prices. The independent claims of the ’132 patent claim this solution by
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`requiring the combination of a static display of prices; a dynamic display of bids and
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`asks aligned with a static display of prices; and an order entry region, aligned with the
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`static display of prices, with a plurality of areas for receiving single action commands
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`to set parameters and send order messages. The chart below shows the elements of
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`6
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`claim 1 of the ’132 patent and how those map with features of a GUI tool as
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`illustrated in Figures 3 and 4.
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`Claim Elements
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`Graphical User Interface Elements
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`1. A method of placing a
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`trade order for a commodity
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`on an electronic exchange
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`having an inside market with
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`a highest bid price and a
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`lowest ask price, using a
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`graphical user interface and a
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`user
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`input
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`device,
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`said
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`method comprising:
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`7
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`0012
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`Graphical
`User
`Interface
`(GUI)
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`setting a preset parameter for
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`the trade order
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`Parameter
`setting
`element
`(sets
`default
`quantity)
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`8
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`0013
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`Case No. CBM2014-00135
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`displaying market depth of
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`the commodity, through a
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`dynamic display of a plurality
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`of bids and a plurality of asks
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`in
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`the market
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`for
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`the
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`commodity, including at least
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`a portion of the bid and ask
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`quantities of the commodity,
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`the dynamic display being
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`aligned with a static display of
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`prices corresponding thereto,
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`wherein the static display of
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`prices does not move
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`in
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`response to a change in the
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`inside market;
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`
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`Dynamic
`Display
`Element
`(for Asks)
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`Dynamic
`Display
`Element
`(for Bids)
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`Static Display Element (for
`Prices) Aligned with Dynamic
`Display Elements
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`9
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`0014
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`Sell Order Entry Region Element
`Aligned with Static Display
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`One area
`for
`Receiving
`Commands
`from User
`Input
`Devices
`Correspond
`ing to an
`Element of
`the Static
`Display
`
`Corresponding
`Element of
`Static Display
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`Buy Order Entry Region Element
`Aligned with Static Display
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`displaying an order entry
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`region aligned with the static
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`display prices comprising a
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`plurality of areas for receiving
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`commands
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`from
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`the user
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`input devices to send trade
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`orders,
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`each
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`area
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`corresponding to a price of
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`the static display of prices;
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`and
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`10
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`selecting a particular area in
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`the
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`order
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`entry
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`region
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`through single action of the
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`user
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`input device with a
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`pointer of the user
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`input
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`device positioned over the
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`particular
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`area
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`to
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`set
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`a
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`plurality
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`of
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`additional
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`parameters for the trade order
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`and send the trade order to
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`the electronic exchange.
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`
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`The click sets the type of
`order (buy) and the price
`(89) and sends the order
`to market.
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`In addition, the inventive GUI tool provided an unexpected benefit of solving
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`another technical problem with the prior art GUIs—the usability of such GUIs. The
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`interaction of the price axis and dynamic indicator elements of the new tool better
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`represented the market and changes in the market than prior art style GUIs. Ex. 2011
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`at pp. 703-706; Ex. 2201 at ¶ 33. For example, allowing the market indicators to move
`11
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`up and down relative to the price axis (which results from the claimed juxtaposing of
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`the dynamic indicators and the static price axis) allowed a user to enter orders more
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`quickly and accurately at desired prices than prior tools and provided more intuitive
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`market visualization. Ex. 2201 at ¶ 33. This improved visualization is described in the
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`patents (see, e.g., Ex. 1001, 7:15-46), and is seen by comparing Figures 3 and 4.
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`Over an extensive period, Mr. Brumfield spent significant resources working
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`with technical consultants from TT to develop a working prototype. Ex. 2011 at 696-
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`99. Like a physical device, the GUI tool needs to be built—but from code as opposed
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`to physical materials. While a physical device with segmented readouts for display and
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`buttons to accept inputs to place orders might have been constructed, a computer is
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`the modern “raw material” from which new tools can more efficiently be made. While
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`a tool can be built on a conventional computer, the tool itself—here an improved
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`GUI—is hardly conventional. It improves the functioning of the computer, if not
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`transforms it.
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`B.
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`The Claimed Features and Functionality of the Improved GUI Are
`an Inventive Concept, Not Conventional
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`Importantly, TD does not address the details of the claims. Rather, TD only
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`generalizes the claims. Pet., pp. 13-14. TD ignores the substantive elements of the
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`body of the claims, which set forth detailed requirements for the structural and
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`functional features of the claimed GUI tool instead of merely a generic, non-particular
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`GUI. For example, TD’s assertions, at best, only address the highlighted portions of
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`
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`12
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`0017
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`claim 1 below:
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`Case No. CBM2014-00135
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`This generalization of the claim results in a phantom claim that ignores the
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`GUI improvement at the heart of the ’132 patent:
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`
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`The fact that the claims are directed to an improved GUI, rather than a generic
`13
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`0018
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`GUI, shows that the claims are not directed to an abstract idea and recite an inventive
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`concept beyond an abstract idea. The claims do not recite a generic GUI because all
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`claims of the ’132 patent recite the features of the improved GUI.2 Supra at II.A.
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`None of the claims are merely directed to a method of placing an order or to display
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`market data. Instead, the novel and nonobvious elements of all of the claims are
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`directed to the structure and makeup of a particular, improved GUI tool. A novel and
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`nonobvious GUI is not conventional.
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`As shown below, the combination of structural and functional GUI features is
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`why the claims were allowed over the prior art. Further, the claims not only recite
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`structural components, they also recite the make-up and placement of these features
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`relative to each other. TD fails to address any of these claim elements, alone or in
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`combination. For this reason alone, TD fails to meet its burden of proving the claims
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`ineligible under § 101.
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`Moreover, the dependent claims require additional GUI features that provide
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`additional support for patent eligibility. For example, some dependent claims are
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`directed to dynamically displaying an entered or working order indicator, or a last
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`traded quantity in alignment with the static display of prices (e.g., Ex. 1001, claims
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`2 That certain claims are written in method format is irrelevant. The method claims
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`are directed to the inventive features of the GUI tool, just like the other claims. The
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`method claims just require that the claimed features be used once.
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`14
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`0019
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`25-26, 29, 35-36, 39). Other dependent claims are directed to displaying bid/ask order
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`entry regions that overlap the bid/ask display regions (e.g., id., claim 50), repositioning
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`the static display of prices (e.g., id., claim 34) and cancelling trade orders by taking
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`actions in the GUI (e.g., id., claim 7).
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`1.
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`The Claimed GUI Features Were the Inventive Contribution
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`The PTAB has the benefit of numerous decisions confirming the nature of the
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`invention was a specific, innovative GUI that improved prior GUIs—not trading
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`using a GUI in the abstract. For example, the Federal Circuit summarized the patents
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`as covering improved GUI software:
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`The patents claim software. . . . The software’s graphical
`user interface (“GUI”) includes “a dynamic display for a
`plurality of bids and for a plurality of asks in the market for
`the commodity and a static display of prices corresponding
`to the plurality of bids and asks.” The claimed invention
`facilitates more accurate and efficient orders in this trading
`environment.
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`Trading Techs. Inst’l, Inc. v. eSpeed, Inc., 595 F.3d 1340, 1345 (Fed. Cir. 2010). And the
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`district court in the CQG trial agreed. Ex. 2200, Trading Techs. Int’l, Inc. v. CQG, Dkt.
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`1073, at 9 (“the claims are directed to a technological improvement of GUIs . . . the
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`claims recite an inventive concept . . . .”).
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`The courts’ understanding that the claims are directed to a GUI improvement
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`is confirmed by the prosecution history. The PTO has always distinguished the
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`claimed invention from the prior art based on the combination of elements identified
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`above, e.g., a static price axis, dynamic indicators, and an order entry region with areas
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`for receiving single action commands. The PTO recognized:
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`[t]he primary reason for allowance is the limitation directed to the
`“dynamic display” of a plurality of the quantity of bids and asks aligned
`with a “static display” of corresponding prices . . . . With this display of
`market depth, claimed in each of the independent claims, a trader places
`a trade order with the pointer in the area of the order entry region of the
`dynamic market depth region, through a single computer implemented
`action, see Figures 3 and 4.
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`Ex. 2083, ’132 Notice of Allowance, at 5.
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`TD does not challenge the novelty of the claims, and the PTAB rejected the
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`proposed obviousness grounds. See Pet., pp. 8-9; Inst. D., pp. 19-22. Indeed, the
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`novelty and nonobviousness of the claimed combination have been confirmed
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`multiple times, originally during a rigorous examination at the PTO, then again in the
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`eSpeed case,3 then again in anonymous reexaminations in which the PTO considered
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`hundreds of prior art order entry GUIs,4 and yet again when the PTO refused to even
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`3 Exhibit 2101, Trading Techs. Int’l. Inc., v. eSpeed, Inc. et al. , Case No. 04-cv-5312, Dkt.
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`1140 (Jan. 3, 2008) (denying JMOL motion that the claims are invalid based on, inter
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`alia, obviousness and anticipation).
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`4 See Ex. 2050.
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`entertain a reexamination filed. Ex. 2051.
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`Accordingly, the courts and the PTO have confirmed that the claims are
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`directed to an improvement to a GUI, which is all that is needed under the controlling
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`law.
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`C.
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`A New GUI Is New Technology
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`The subject matter of TT’s claims, GUIs, has long been recognized as a
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`technological field. For example, NASA includes a Human Systems Integration
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`Division that covers several “technical areas,” including the Human Computer
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`Interaction (HCI) Group, described as:
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`The Ames HCI Group contributes to the development of
`measurably better NASA
`software
`through careful
`application of HCI methods. We follow an iterative process
`that consists of user research, interaction design, and
`usability evaluation. It is commonly assumed that HCI is
`exclusively focused on the interface. We are focused on the
`users and their goals in order to build the right tool which
`means that we are focused on functionality as well as
`interface.
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`Ex. 2054. Moreover, many colleges offer science degrees in human-computer
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`interaction. Exs. 2053-2061. Furthermore, experts who have testified regarding the
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`claimed inventions, including experts of TD’s co-defendants in the district court, have
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`referred to the field of the invention as a technological field. Ex. 2202, PTX 6052-56.
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`The problems addressed by the claims are also technical because they relate to classic
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`engineering problems of efficiency, precision and usability. Indeed, the design and
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`function of a computer interface is often more important than the computer hardware
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`used to provide it.
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`The patent does not merely claim implementing a known business process or
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`generally displaying information on a generic computer. Rather, it details features and
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`functionality of a new GUI tool. Trading is merely the application of the new GUI
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`tool, but not what the claims are about. Thus, the claims here are analogous to claims
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`directed to an improved instrument panel in the cockpit of an airplane. By falsely
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`characterizing the claims as only “well-understood, routine, conventional activity
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`previously engaged in by the trading community,” TD is ignoring the substantive
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`claim limitations. Pet., p. 14. That the patent notes the invention can be implemented
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`“on any existing or future terminal or device” or that physical mapping can “be done
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`by any technique known to those skilled in the art” is irrelevant. Existing computers
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`are the canvas on which the improved GUI technology is created. The claims are not
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`directed to a generic terminal or a mapping technique, but to an innovative GUI tool
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`implemented on a computer. TD’s argument is akin to arguing that a patent on a
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`stapler is ineligible because it is made of steel, a known material, and uses known
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`components. TD misses the point when it says “[t]he claimed graphical user interface
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`(GUI) is just the mechanism for implementing the abstract idea.” Id. at 13. The claims
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`are directed to a new GUI itself, not merely displaying something on a generic display.
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`III. THE CURRENT § 101 FRAMEWORK
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`Section 101 extends patent protection to “any new and useful process,
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`machine, manufacture, or composition of matter, or any new and useful improvement
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`thereof.” 35 U.S.C. § 101. The Supreme Court has set forth three exceptions to
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`section 101’s scope: “laws of nature, physical phenomena, and abstract ideas.”
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`Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980).
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`As the Court recently explained, the overarching concern is preventing
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`preemption of fundamental “building blocks of human ingenuity.” Alice Corp. Pty. v.
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`CLS Bank Int'l, 134 S. Ct. 2347, 2354 (2014). Alice articulates a two-step process to
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`determine whether claims of a patent are within the realm of patent-eligible subject
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`matter. Id. at 2355 (relying on Mayo Collaborative Servs. v. Prometheus Labs., 132 S. Ct.
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`1289 (2012)). The first step of the analysis, given the nature of the invention, is to
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`determine whether the patent claims are directed to a patent-ineligible abstract idea.
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`Id. at 2355; see also Mayo, 132 S. Ct. at 1296-1297. If this step is met, then it must be
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`determined whether the second step is met, i.e., to “consider the elements of each
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`claim both individually and ‘as an ordered combination’ to determine whether the
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`additional elements ‘transform the nature of the claim’ into a patent-eligible
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`application.” Id. at 2355 (quoting Mayo, 132 S. Ct. at 1298, 1297). This second step
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`searches for an “‘inventive concept,’ or some element or combination of elements
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`sufficient to ensure that the claim in practice amounts to ‘significantly more’ than a
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`patent on an ineligible concept.” DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d
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`1245, 1255 (Fed. Cir. 2014) (quoting Alice, 134 S. Ct. at 2355). Again, the point here is
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`to make sure the claims recite something that prevents them from impermissibly
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`preempting an abstract idea. See Alice, 134 S. Ct. at 2359 (the claims must “do more
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`than simply instruct the practitioner to implement the abstract idea” on a generic
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`computer); see also Ultramercial v. Hulu, LLC, 772 F.3d 709, 722-23 (2014) (quoting
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`Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130 (1948) and citing Alice, 134 S.
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`Ct. at 2354) (explaining that “It is not that generic computers and the Internet are not
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`‘technology,’ but
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`instead
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`that
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`they have become
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`indispensable staples of
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`contemporary life. Because they are the basic tools of modern-day commercial and
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`social interaction, their use should in general remain ‘free to all men and reserved
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`exclusively to none.’”). In contrast, claims directed to an “improve[ment to] the
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`functioning of the computer itself or effect an improvement in any other
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`technology or technical field” are patent eligible because they remove the
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`preemption concern. Alice, 134 S. Ct. at 23