Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 19
`Entered: March 3, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.
`TRADESTATION SECURITIES, INC., TRADESTATION
`TECHNOLOGIES, INC., and IBFX, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2015-00182
`Patent 6,772,132 B1
`_______________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PLENZLER, Administrative Patent Judge.
`
`DECISION
`Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`
`
`0001
`
`IBG 1038
`CBM of U.S. Patent No. 7,693,768
`
`

`
`CBM2015-00182
`Patent 6,772,132 B1
`
`
`INTRODUCTION
`
`A. Background
`IBG LLC, TradeStation Group, Inc., TradeStation Securities, Inc.,
`TradeStation Technologies, Inc., and IBFX, INC. (collectively, “Petitioner”)
`filed a Petition on September 11, 2015 requesting covered business method
`patent review of claims 1–56 (the “challenged claims”) of U.S. Patent No.
`6,772,132 B1 (Ex. 1001, “the ’132 patent”). Paper 7 (“Pet.”). On December
`21, 2015, Trading Technologies International, Inc. (“Patent Owner”) filed a
`Preliminary Response. Paper 15 (“Prelim. Resp.”).
`We have jurisdiction under 35 U.S.C. § 324, which provides that a
`covered business method patent review may not be instituted “unless . . . it is
`more likely than not that at least 1 of the claims challenged in the petition is
`unpatentable.”
`Upon consideration of the Petition and Preliminary Response, we
`determine that Petitioner has demonstrated that it is more likely than not that
`the challenged claims are unpatentable. Accordingly, we institute a covered
`business method review of claims 1–56 of the ’132 patent.
`B. Expanded Panel Request
`Patent Owner suggests that the decision on institution be made by an
`expanded panel of administrative patent judges. Prelim. Resp. 77–78.
`Discretion to expand a panel rests with the Chief Judge, who, on behalf of
`the Director, may act to expand a panel on a suggestion from a judge or
`panel. AOL Inc. v. Coho Licensing LLC, Case IPR2014-00771, slip op. at 2
`(PTAB Mar. 24, 2015) (Paper 12) (informative). Patent Owner’s suggestion
`was considered by the Acting Chief Administrative Patent Judge, who
`declined to expand the panel.
`
`
`
`2
`
`0002
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`CBM2015-00182
`Patent 6,772,132 B1
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`
`C. Related Proceedings
`The parties indicate that the ’132 patent is the subject of numerous
`related U.S. district court proceedings. Pet. 2; Paper 10, 2–6.
`The ’132 patent was the subject of petitions for covered business
`method patent review in TD Ameritrade Holding Corp. v. Trading
`Technologies International, Inc., CBM2014-00135 (PTAB) and CQG, Inc.
`v. Trading Technologies International, Inc., CBM2015-00058 (PTAB).
`Trial was instituted, but later terminated, for CBM2014-00135. Institution
`was denied for CBM2015-0058.
`Numerous patents are related to the ’132 patent and the related patents
`are or were the subject of numerous petitions for covered business method
`patent review and reexamination proceedings.
`D. Asserted Grounds
`Petitioner contends that the challenged claims are unpatentable under
`35 U.S.C. §§ 101 and 103 based on the following grounds (Pet. 14–80).
`References
`Basis Claims Challenged
`N/A
`§ 101
`1–56
`
`Silverman1, Gutterman2, and
`Belden3
`Silverman, Gutterman, Belden, and
`May4
`Silverman, Gutterman, Belden, and
`Paal5
`
`§ 103
`
`§ 103
`
`1–3, 5–10, 13–16, 18–23, 25–
`33, 35–43, and 45–56
`4, 11, and 17
`
`§ 103
`
`23, 34, and 44
`
`
`1 U.S. Pat. No. 5,077,665, iss. Dec. 31, 1991 (Ex. 1010, “Silverman”).
`2 U.S. Pat. No. 5,297,031, iss. Mar. 22, 1994 (Ex. 1011, “Gutterman”).
`3 PCT Pub. No. WO 90/11571, pub. Oct. 4, 1990 (Ex. 1012, “Belden”).
`4 CA 2 305 736 A1, pub. Apr. 22, 1999 (Ex. 1013, “May”).
`5 U.S. Pat. No. 5,263,134, iss. Nov. 16, 1993 (Ex. 1014, “Paal”).
`3
`
`
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`0003
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`

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`Patent 6,772,132 B1
`
`References
`TSE6 and Belden
`
`TSE, Belden, and May
`
`Basis Claims Challenged
`§ 103
`1–3, 7–10, 14–16, 20–28, 30–
`38, 40–48, and 50–56
`4, 11, and 17
`
`§ 103
`
`§ 103
`
`TSE, Belden, and Gutterman
`
`5, 6, 12, 13, 18, 19, 29, 39,
`and 49
`Petitioner provides testimony from David Rho (Ex. 1006; “the Rho
`Declaration) and Kendyl A. Román (Ex. 1007; “the Román Declaration”) to
`support its challenges.
`
`E. The ’132 Patent
`The ’132 patent is titled “Click Based Trading with Intuitive Grid
`Display of Market Depth.” Ex. 1001, (54). The ’132 patent describes a
`display, named the “Mercury” display, and method of using the display to
`trade a commodity. Id. at Abstract, 3:5–10. The ’132 patent explains that
`the Mercury display is a graphic user interface (“GUI”) that dynamically
`displays the market depth of a commodity traded in a market and allows a
`trader to place an order efficiently. Id. at 3:11–24. The Mercury display is
`depicted in Figure 3, which is reproduced below.
`
`
`6 Tokyo Stock Exchange Operation System Division, Futures/Option
`Purchasing System Trading Terminal Operation Guide (1998) (Ex. 1016).
`Citations to this reference refer to its English translation (Ex. 1017).
`4
`
`
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`0004
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`Patent 6,772,132 B1
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`Figure 3 of the ’132 patent illustrates an example of the Mercury display
`with example values for trading a commodity including prices, bid and ask
`quantities relative to price, and trade quantities.
`The Mercury display includes a plurality of columns. Column 1005 is
`a static price axis, which includes a plurality of price values for the
`commodity. See id. at 7:36–48. The ’132 patent explains that “[t]he column
`does not list the whole prices (e.g. 95.89), but rather, just the last two digits
`(e.g. 89).” Id. at 7:38–40. Columns 1003 and 1004 are aligned with the
`static price axis and dynamically display bid and ask quantities, respectively,
`for the corresponding price values of the static price axis. See id. at 7:35–51.
`The ’132 patent explains that “[t]he exchange sends the price, order and fill
`information to each trader on the exchange” and that “[t]he physical
`
`5
`
`0005
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`mapping of such information to a screen grid can be done by any technique
`known to those skilled in the art.” Id. at 4:61–5:1.
`Column 1002 contains various parameters and information used to
`execute trades, such as the default quantity displayed in cell 1016. See id. at
`8:3–37. A trader executes trades using the Mercury display by first setting
`the desired commodity and default parameters, such as default quantity. See
`id. at 9:3–17; Fig. 6, step 1302. Then, a trader can send a buy order or sell
`order to the market with a single action, such as clicking on the appropriate
`cell in column 1003 or 1004. See id. at 9:7–10:3; Fig. 6, steps 1306–1315.
`F. Illustrative Claim
`As noted above, Petitioner challenges claims 1–56. Claims 1, 8, and
`14 are independent. Claim 1 is illustrative of the claimed subject matter and
`is reproduced below:
`1. A method of placing a trade order for a commodity on an
`electronic exchange having an inside market with a highest bid
`price and a lowest ask price, using a graphical user interface and
`a user input device, said method comprising:
`setting a preset parameter for the trade order
`displaying market depth of the commodity, through a dynamic
`display of a plurality of bids and a plurality of asks in the
`market for the commodity, including at least a portion of the
`bid and ask quantities of the commodity, the dynamic display
`being aligned with a static display of prices corresponding
`thereto, wherein the static display of prices does not move in
`response to a change in the inside market;
`displaying an order entry region aligned with the static display
`prices comprising a plurality of areas for receiving
`commands from the user input devices to send trade orders,
`each area corresponding to a price of the static display of
`prices; and
`
`
`
`6
`
`0006
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`
`selecting a particular area in the order entry region through single
`action of the user input device with a pointer of the user input
`device positioned over the particular area to set a plurality of
`additional parameters for the trade order and send the trade
`order to the electronic exchange.
`Ex. 1001, 12:2–27.
`
`ANALYSIS7
`
`A. Claim Construction
`In a covered business method patent review, claim terms are given
`their broadest reasonable interpretation in light of the specification in which
`they appear and the understanding of others skilled in the relevant art. See
`37 C.F.R. § 42.300(b); In re Cuozzo Speed Techs., LLC, 793 F.3d 1268,
`1278–79 (Fed. Cir. 2015), cert. granted sub nom. Cuozzo Speed Techs., LLC
`v. Lee, 84 U.S.L.W. 3218 (U.S. Jan. 15, 2016) (No. 15-446).
`Applying that standard, we interpret the claim terms of the ’132 patent
`according to their ordinary and customary meaning in the context of the
`patent’s written description. See In re Translogic Tech., Inc., 504 F.3d 1249,
`1257 (Fed. Cir. 2007). Any special definitions for claim terms must be set
`forth with reasonable clarity, deliberateness, and precision. In re Paulsen,
`
`
`7 Both Petitioner and Patent Owner reference our prior decisions denying
`institution in CBM2014-00135 and CBM2015-00058 and decisions of
`district courts in related proceedings. We do not give much, if any,
`deference to our prior decisions and the decisions of the district courts in
`determining whether to institute a covered business method patent review in
`this proceeding. Those prior decisions were based on different parties,
`different evidence, and in the case of the district court proceedings based on
`different standards of proof and claim construction standards. Additionally,
`we give no consideration to the arguments Patent Owner presents in letters
`sent to the Director of the United States Patent and Trademark Office.
`7
`
`
`
`0007
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`

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`Patent 6,772,132 B1
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`30 F.3d 1475, 1480 (Fed. Cir. 1994). Petitioner proposes constructions for
`“single action” and “working order” (Pet. 13–14), and Patent Owner offers
`no proposed claim constructions. For purposes of this Decision, we
`determine that the only terms requiring an express construction in order to
`conduct properly our analysis are those discussed below.
`1. “single action” limitations
`Petitioner contends that
`The ’132 patent specification defines this term: “Any action by a
`user within a short period of time, whether comprising one or
`more clicks of a mouse button or other input device, is considered
`a single action of the user for the purposes of the present
`invention.” (’132 patent, 4:15-20; Román Decl. ¶ 78.)
`Pet. 14. Patent Owner does not dispute this construction. Upon review, we
`agree, and adopt that construction for purposes of this decision.
`Each of the independent claims recites the “single action.” The
`relation of the “single action” to the subsequent language in the claims
`merits discussion. Claim 1 recites “selecting a particular area in the order
`entry region through single action of the user input device . . . to set a
`plurality of additional parameters for the trade order and send the trade order
`to the electronic exchange.” Claim 8 similarly recites
`a fourth program code for receiving a command as a result of a
`selection of a particular area in the order entry region by a single
`action of the user input device . . . , to set a plurality of additional
`parameters for the trade order and send the trade order to the
`electronic exchange.
`Claim 14 recites
`a trade order sending component for receiving a command as a
`result of a selection of the area in the order entry region by a
`single action of the user input device . . . , to set a plurality of
`additional parameters for the trade order and send the trade
`order to the electronic exchange.
`8
`
`
`
`0008
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`

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`CBM2015-00182
`Patent 6,772,132 B1
`
`
`While neither party offers an express interpretation for this language,
`the parties appear to read the claims as requiring that the “single action” sets
`the additional parameters for the trade order and sends the trade order. See,
`e.g., Pet. 44–48, 69–72; Prelim. Resp. 75–76.
`We do not read the claims as requiring that the “single action” sets the
`additional parameters for the trade order or sends the trade order.8 To the
`extent it is unclear whether the claim language requires setting parameters
`and sending the order based on the “single action,” the broader construction
`is consistent with the specification of the ’132 patent and supported by the
`prosecution history of ’132 patent.9
`The only embodiment discussed in the specification of the ’132 patent
`includes setting trade parameters and sending a trade order based on a single
`action, but the specification does not limit the scope of the claims to such an
`arrangement. See Ex. 1001, 9:61–11:11. Based on the record before us, we
`do not limit the scope of the claims to that embodiment. See In re Am Acad.
`Of Science Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Review of the
`prosecution history reveals that our interpretation is the proper reading of the
`
`
`8 The claim language at issue in this proceeding is different than that in the
`related proceedings, such as CBM2015-00161 and CBM2015-0181. For
`example, claim 1 of U.S. Patent No. 6,766,304 B2, at issue in CBM2015-
`00161, requires that the setting of the parameters for a trade order and the
`sending the trade order be in response to the selection of a particular location
`of the order entry region by a single action.
`9 CBM2014-00135 addressed the same patent as this proceeding and applied
`a more narrow scope to the “single action” limitation. See Ex. 1032, 21. The
`prosecution history, however, does not appear to be in the record of
`CBM2014-00135 and we have reconsidered the breadth of the “single
`action” limitation in light of the prosecution history, which is of record in
`this proceeding.
`
`
`
`9
`
`0009
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`Patent 6,772,132 B1
`
`claim, showing that the intent of the patentee of the ’132 patent was not to
`have this claim language require setting parameters and sending an order as
`a result of the “single action.” See Ex. 1002, 265–267, 861. For example,
`the patentee specifically removed language from the claims that would have
`imparted this narrower meaning. See id. at 265–267. Further, the patentee
`explicitly stated its interpretation of claim scope as “allowing for parameters
`of a trade order to be set and for the trade order to be sent . . . in response to
`a selection of a location in an order entry region through a single action”
`when characterizing the claims after the amendment, rather than setting the
`parameters and initiating placement of the trade order via the single action as
`recited before the claims were amended. Id. at 861 (emphasis added).
`Accordingly, based on the record before us in this proceeding, we
`determine that the “single action” recited in claims 1, 8, and 14 does not
`require setting the additional parameters or sending the trade order. Rather,
`the claims require that the selection of the area in the order entry is
`accomplished by the “single action,” and that “single action” allows for
`additional parameters to be set and the trade order to be sent. Accordingly,
`this limitation could be met, for example, as a result of the “single action”
`itself resulting in the setting and sending or through some subsequent user
`action, such as the “single action” resulting in the user being provided the
`opportunity to set the additional parameters and send the trade order.
`2. “computer readable medium having program code recorded
`thereon”
`Claims 8–13, 30–39, and 51 recite “computer readable medium
`having program code recorded thereon.” Petitioner contends that “[u]nder
`the broadest reasonable interpretation (‘BRI’), the scope of this term is broad
`enough to encompass a transitory, propagating signal that is encoded.” Pet.
`10
`
`
`
`0010
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`18. Petitioner explains that the specification neither defines this term nor
`provides examples. Patent Owner does not provide a proposed construction
`for this limitation, but implies that the word “recorded” limits the claim to
`non-transitory media. See Prelim. Resp. 51. Patent Owner does not dispute
`that the specification of the ’132 patent neither defines this term nor
`provides examples for a “computer readable medium,” and after reviewing
`the specification we see no reference to “computer readable medium” other
`than that in the claims.
`The addition of the phrase “having program code recorded thereon” to
`“computer readable medium” does not limit the medium to non-transitory
`media. A definition of the verb “record” is “to set down in writing” or “to
`cause (as sound, visual images, or data) to be registered on something (as a
`disc or magnetic tape) in reproducible form).” Ex. 3001 (Merriam-
`Webster’s Collegiate Dictionary, 10th ed. definition of record). This
`definition does not preclude the program code from being recorded, albeit
`temporarily, on transitory media. See Ex parte Mewherter, 107 USPQ2d
`1857, 1859–60 (PTAB 2013) (precedential) (determining that a computer
`readable storage medium having a computer program stored thereon
`encompasses transitory propagating signals).
`On this record, we determine that the broadest reasonable
`interpretation of “computer readable medium having program code recorded
`thereon” is any medium that participates in providing instruction to a
`processor for execution and having program code recorded thereon.
`
`
`
`11
`
`0011
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`CBM2015-00182
`Patent 6,772,132 B1
`
`
`B. Covered Business Method Patent
`Section 18 of the AIA10 provides for the creation of a transitional
`program for reviewing covered business method patents. A “covered
`business method patent” is a patent that “claims a method or corresponding
`apparatus for performing data processing or other operations used in the
`practice, administration, or management of a financial product or service,
`except that the term does not include patents for technological inventions.”
`AIA § 18(d)(1); see 37 C.F.R. § 42.301(a). A patent need have only one
`claim directed to a covered business method to be eligible for review. See
`Transitional Program for Covered Business Method Patents—Definitions of
`Covered Business Method Patent and Technological Invention, 77 Fed. Reg.
`48,734, 48,736 (Aug. 14, 2012) (“CBM Rules”) (Comment 8).
`In this Petition, Petitioner contends that “while a patent need only one
`claim directed to a CBM to be eligible for CBM review . . . all the claims
`qualify,” and particularly cites claims 1, 4–8, and 14. Pet. 4.
`1. Financial Product or Service
`Petitioner asserts that claim 1 is directed to a covered business method
`because it recites a method of placing a trade order for a commodity on an
`electronic exchange including the steps of displaying market information
`and sending a trade order, which are financial in nature. Id. Based on this
`record, we agree with Petitioner that at least the subject matter recited by
`claim 1 is directed to activities that are financial in nature, namely
`“displaying . . . a plurality of bids and a plurality of asks in the market for
`the commodity” and “selecting a particular area in the order entry region . . .
`
`
`10 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
`
`
`12
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`0012
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`to . . . send the trade order to the electronic exchange,” which are recited in
`the claim. Patent Owner acknowledges that “the claims include financial
`terms [and] that the claimed GUI tool can be used to trade,” but contends
`that “improvements to software tools or GUIs, even if used to implement a
`trading strategy or other financial activity, are outside the scope of CBMR.”
`Prelim. Resp. 7–8. Patent Owner cites to various portions of the legislative
`history as support for its proposed interpretation. Id.
`The “legislative history explains that the definition of covered
`business method patent was drafted to encompass patents ‘claiming
`activities that are financial in nature.’” 77 Fed. Reg. at 48,735 (quoting 157
`Cong. Rec. S5432 (daily ed. Sept. 8, 2011) (statement of Sen. Schumer)).
`The legislative history indicates that “financial product or service” should be
`interpreted broadly to “encompass patents ‘claiming activities that are
`financial in nature, incidental to a financial activity or complementary to a
`financial activity.’” Id.; see Versata Dev. Grp., Inc. v. SAP America, Inc.,
`793 F.3d 1306, 1323–26 (Fed. Cir. 2015).
`We are not persuaded by Patent Owner’s argument that the legislative
`history of the AIA establishes that novel user interfaces for commodities, as
`a category, were intended to be exempt from covered business method
`patent review. See Prelim. Resp. 8–11. As Petitioner argues, although the
`legislative history includes certain statements that certain novel software
`tools and graphical user interfaces that are used by the electronic trading
`industry worker are not the target of § 18 of the AIA (see Prelim. Resp. 8–11
`(reproducing statements by Senator Durbin and Schumer)), the language of
`the AIA, as passed, does not include an exemption for all user interfaces for
`commodities from covered business method patent review. See Pet. 8–10.
`
`
`
`13
`
`0013
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`Each patent has to be evaluated individually to determine if it is eligible for
`a covered business method patent review. A determination of whether a
`patent is eligible for a covered business method patent review under the
`statute is made on a case-by-case basis on the facts of each case. 37 C.F.R.
`§ 42.301(b).
`For the reasons stated above, and based on the particular facts of this
`proceeding, we conclude that the ’132 patent includes at least one claim that
`meets the financial in nature requirement of § 18(d)(1) of the AIA.
`2. Exclusion for Technological Inventions
`To determine whether a patent is for a technological invention, we
`consider “whether the claimed subject matter as a whole recites a
`technological feature that is novel and unobvious over the prior art; and
`solves a technical problem using a technical solution.” 37 C.F.R.
`§ 42.301(b).
`The following claim drafting techniques, for example, typically do not
`render a patent a “technological invention”:
`(a) Mere recitation of known technologies, such as computer
`hardware, communication or computer networks, software,
`memory, computer-readable storage medium, scanners, display
`devices or databases, or specialized machines, such as an ATM
`or point of sale device.
`(b) Reciting the use of known prior art technology to accomplish
`a process or method, even if that process or method is novel and
`non-obvious.
`(c) Combining prior art structures to achieve the normal,
`expected, or predictable result of that combination.
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,763–64 (Aug.
`14, 2012).
`
`
`
`14
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`0014
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`
`Both prongs must be satisfied in order for the patent to be excluded as
`a technological invention. See Versata, 793 F.3d at 1326–27.
`Petitioner contends that rather than reciting a technical feature that is
`novel or unobvious over the prior art, the claims of the ’132 patent generally
`recite trading software that is implemented on a conventional computer.
`Pet. 5–7. Patent Owner disagrees, arguing that GUI features in the claims
`provide novel and non-obvious technological features. Prelim. Resp. 14–16.
`We are persuaded by Petitioner’s contentions that at least claim 1 of
`the ’132 patent does not recite a novel and non-obvious technological
`feature. The specification of the ’411 patent treats as well-known all
`potentially technological aspects of the claims. For example, the ’132 patent
`discloses that its system can be implemented “on any existing or future
`terminal or device” (Ex. 1001, 4:4–7), each of which is known to include a
`display, and discloses that the input device can be a mouse (id. at 4:9–11),
`which is a known input device. The ’132 patent further discloses that “[t]he
`scope of the present invention is not limited by the type of terminal or device
`used.” Id. at 4:7–9. The ’132 patent also describes the programming
`associated with the GUI as insignificant. See, e.g., Ex. 1001, 4:62–5:1
`(explaining that “present invention processes [price, order, and fill]
`information and maps it through simple algorithms and mapping tables to
`positions in a theoretical grid program” and “[t]he physical mapping of such
`information to a screen grid can be done by any technique known to those
`skilled in the art”).
`Petitioner also asserts that the claims of the ’132 patent do not fall
`within § 18(d)(1)’s exclusion for “technological inventions” because the
`’132 patent does not solve a technical problem using a technical solution.
`
`
`
`15
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`0015
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`Pet. 7–8. Petitioner notes that “[a]ccording to the ’132 patent, the ‘problem’
`with prior art trading GUIs was that the market price could change before a
`trader entered a desired order, causing the trader to ‘miss his price.’” Id. at 7
`(citing Ex. 1001, 2:53-63). Petitioner contends that “the ’132 patent’s
`solution is not technical” because Patent Owner “simply [] rearrange[d] how
`known and available market data is displayed on a GUI” and “did not design
`a more accurate mouse or a computer that responded faster.” Id. at 8.
`Patent Owner argues that the ’132 patent solves a technical problem
`using a technical solution. Prelim. Resp. 14, 17–20. According to Patent
`Owner, the ’132 patent “claims a specific combination of features of a GUI
`that purportedly was lacking in the prior art and that solved problems
`relating to speed, accuracy and usability—all technical problems.” Id. at 17.
`We are persuaded that the ’132 patent does not solve a technical
`problem with a technical solution. The ’132 patent purports to solve the
`problem of a user missing an intended price because a price level changed as
`the user tried to click to send an order at an intended price level in a GUI
`tool. See Ex. 1001, 2:23–63. As written, claim 1 requires the use of only
`known technology. Given this, we determine that at least claim 1 does not
`solve a technical problem using a technical solution and at least claim 1 does
`not satisfy the second prong of 37 C.F.R. § 42.301(b).
`3. Conclusion
`In view of the foregoing, we conclude that the ’132 patent is a covered
`business method patent under AIA § 18(d)(1) and is eligible for review
`using the transitional covered business method patent program.
`
`
`
`16
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`0016
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`
`C. Section 101 Patent-Eligible Subject Matter
`Petitioner challenges claims 1–56 as directed to patent-ineligible
`subject matter under 35 U.S.C. § 101. Pet. 14–26. Patent Owner disagrees.
`Prelim. Resp. 30–52.
`Under 35 U.S.C. § 101, we must first identify whether an invention
`fits within one of the four statutorily provided categories of patent-
`eligibility: “processes, machines, manufactures, and compositions of
`matter.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713–14 (Fed. Cir.
`2014).
`Initially, we note that Petitioner asserts that claims 8–13, 30–39, and
`51 are “broad enough to encompass a transitory, propagating signal that is
`encoded, which is not eligible for patenting.” Pet. at 18 (citing In re Nuijten,
`550 F.3d 1346, 1357 (Fed. Cir. 2007)). Patent Owner argues that
`“Petitioners misapply In re Nuijten” and “also have not addressed the
`recitation of ‘recorded’ in the claims, and fail to explain why this would not
`restrict the claim to non-transitory media.” Prelim. Resp. 51–52.
`As indicated above, however, we determine that the broadest
`reasonable interpretation of “computer readable medium having program
`code recorded thereon” is any medium that participates in providing
`instruction to a processor for execution and having program code recorded
`thereon. Given this interpretation, claims 8–13, 30–39, and 51 encompass
`transitory, propagating signals. Transitory, propagating signals are not
`covered by the four statutory classes of subject matter of 35 U.S.C. § 101.
`In re Nuijten, 500 F.3d at 1352.
`There is no dispute that the remaining claims fit within one of the four
`statutorily provided categories of patent-eligibility. Even if claims 8–13,
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`30–39, and 51 were to fit within one of the categories of patent-eligibility,
`we are persuaded that they do not recite patent-eligible subject matter for the
`reasons that follow.
`1. Abstract Idea
`Section 101 “contains an important implicit exception: Laws of
`nature, natural phenomena, and abstract ideas are not patentable.” Alice
`Corp. Pty. Ltd. V. CLS Bank. Intern., 134 S. Ct. 2347, 2354 (2014) (citing
`Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107,
`2116 (2013) (internal quotation marks and brackets omitted)). In Alice, the
`Supreme Court reiterated the framework set forth previously in Mayo
`Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
`(2012) “for distinguishing patents that claim laws of nature, natural
`phenomena, and abstract ideas from those that claim patent-eligible
`applications of those concepts.” Alice, 134 S. Ct. at 2355. The first step in
`the analysis is to “determine whether the claims at issue are directed to one
`of those patent-ineligible concepts.” Id.
`Petitioner argues that the challenged claims are directed to the abstract
`idea of “placing an order based on observed (plotted) market information, as
`well as updating market information.” Pet. 16. Patent Owner appears to
`contend that the recitation of a “static display of prices” in the claims
`removes them from being directed to an abstract idea. See, e.g., Prelim.
`Resp. 38–39.
`Independent claims 1, 8, and 14 recite similar limitations, with claim 1
`being directed to a “method,” claim 8 being directed to a “computer readable
`medium,” and claim 14 being directed to a “client system.” We are
`persuaded that the challenged claims are more likely than not drawn to a
`
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`0018
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`patent-ineligible abstract idea. The ’132 patent purports to solve the
`problem of reducing the amount of time to place a trade order. See Ex.
`1001, 2:66–3:2. Claims 1, 8, and 14 are directed to displaying market
`information in a particular manner. Claim 1, for example, recites “a
`dynamic display of a plurality of bids and a plurality of asks in the market
`for the commodity . . . aligned with a static display of prices corresponding
`thereto, wherein the static display of prices does not move in response to a
`change in the inside market.” Although certain limitations, such as use of a
`“static display of prices,” may add a degree of particularity, the concept
`embodied by the majority of the limitations describes only the abstract idea
`of displaying market information to facilitate setting parameters and placing
`a trade order.
`
`2. Inventive Concept
`Next we turn to “the elements of each claim both individually and as
`an ordered combination” to determine whether the additional elements
`“transform the nature of the claim” into a “patent-eligible application.”
`Mayo, 132 S. Ct. at 1297–98. The additional elements must be more than
`“well-understood, routine, conventional activity.” Id. at 1298. On this
`record, Petitioner has established that the challenged claims of the ’132
`patent do not add an inventive concept sufficient to ensure that the patent in
`practice amounts to significantly more than a patent on the abstract idea
`itself. Alice, 134 S. Ct. at 2355.
`Patent Owner argues that “the claims require particular technological
`features of a GUI tool that solve problems with prior art GUI tools.” Prelim.
`Resp. 41. Patent Owner contends that the claims “recite specific structural
`and functional features of a GUI tool that solve, inter alia, the problem of a
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`user missing her intended price because a price level changed as the user
`tried to click to send an order at an intended