Trials@uspto.gov
`571.272.7822
`
`
`
` Paper No. 138
`Entered: March 3, 2017
`
`
`
`
`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 CBM2015-00181
`Patent No. 7,676,411 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`Opinion for the Board filed by PETRAVICK, Administrative Patent Judge.
`
`Opinion dissenting-in-part filed by PLENZLER, Administrative Patent
`Judge.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
`
`IBG 1060
`IBG v. TT
`CBM2016-00054
`
`
`571.272.7822
`
`
`
` Paper No. 138
`Entered: March 3, 2017
`
`
`
`
`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 CBM2015-00181
`Patent No. 7,676,411 B2
`____________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`Opinion for the Board filed by PETRAVICK, Administrative Patent Judge.
`
`Opinion dissenting-in-part filed by PLENZLER, Administrative Patent
`Judge.
`
`PETRAVICK, Administrative Patent Judge.
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
`
`IBG 1060
`IBG v. TT
`CBM2016-00054
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`
`INTRODUCTION
`
`A. Background
`IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc.,
`TradeStation Securities, Inc., TradeStation Technologies, Inc., and IBFX,
`Inc. (collectively, “Petitioner”) filed a Petition requesting covered business
`method patent review of claims 1–28 (the “challenged claims”) of U.S.
`Patent No. 7,676,411 B2 (Ex. 1001, “the ’411 patent”). Paper 7 (“Pet.”).
`Trading Technologies International, Inc. (“Patent Owner”) filed a
`Preliminary Response. Paper 22 (“Prelim. Resp.”). On March 7, 2016, we
`instituted a covered business method patent review (Paper 26, “Institution
`Decision” or “Inst. Dec.”) based upon Petitioner’s assertion that claims 1–28
`are directed to patent ineligible subject matter under 35 U.S.C. § 101 and
`that those claims are unpatentable under 35 U.S.C. § 103. Inst. Dec. 35.
`Subsequent to institution, Patent Owner filed a Patent Owner Response
`(Paper 71, “PO Resp.”) and Petitioner filed a Reply (Paper 105, “Pet.
`Reply”) to Patent Owner’s Response.
`We held a joint hearing of this case and several other related cases on
`October 19, 2016. Paper 131 (“Tr.”).
`After oral hearing, the Federal Circuit issued a decision, Trading
`Technologies Int’l, Inc., v. CQG, Inc., No. 2016-1616, 2017 WL 192716
`(Fed. Cir. Jan. 18, 2017), determining that the claims of U.S. Patent Nos.
`6,766,304 (“the ’304 patent”) and 6,772,132 (“the ’132 patent”) are directed
`to patent-eligible subject matter under § 101.1 Petitioner and Patent Owner,
`
`1 By virtue of a number of continuation filings, the ’411 patent is ultimately
`a continuation of the application resulting in the ’132 patent (Application
`No. 09/590,692). The ’304 patent resulted from a divisional filing of that
`application.
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`with authorization (Paper 134), each filed supplemental briefing addressing
`the impact of that decision on this proceeding. Paper 137 (“Pet. Br.”); Paper
`135 (“PO Br.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown by a
`preponderance of the evidence that claims 1–28 of the ’411 patent are patent
`ineligible under 35 U.S.C. § 101 and unpatentable under 35 U.S.C. § 103.
`B. Related Proceedings
`The parties indicate that the ’411 patent is the subject of numerous
`related U.S. district court proceedings, as well as the Federal Circuit
`Decision noted above. Pet. 2; Paper 11, 2–6; Paper 133, 1.
`The ’411 patent was the subject of a petition for covered business
`method patent review in TD Ameritrade Holding Corp. v. Trading
`Technologies Int’l, Inc., CBM2014-00133 (PTAB), for which trial was
`instituted, but later terminated.
`Numerous patents are related to the ’411 patent and the related patents
`are or were the subject of numerous petitions for covered business method
`patent review and reexamination proceedings.
`C. Asserted Grounds
`Trial was instituted based on the following grounds.
`References
`Basis Claims Challenged
`N/A
`§ 101
`1–28
`
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`References
`TSE,2 Belden,3 and Togher4
`
`Basis Claims Challenged
`§ 103
`1–28
`
`Petitioner provides testimony from David Rho (Ex. 1023; “the Rho
`Declaration) and Kendyl A. Román (Ex. 1019; “the Román Declaration”) to
`support its challenges. Patent Owner provides testimony from Eric
`Gould-Bear (Ex. 2168; “the Gould-Bear Declaration”) and Christopher H.
`Thomas (Ex. 2169; “the Thomas Declaration”).
`D. The ’411 Patent
`The ’411 patent is titled “Click Based Trading with Intuitive Grid
`
`Display of Market Depth.” Ex. 1001, [54]. The invention of the ’411 patent
`“is directed to the electronic trading of commodities.” Id. at 1:21–22. The
`invention of the ’411 patent is a graphical user interface (“GUI”), named the
`Mercury display, and a method of using the Mercury display to trade a
`commodity. Id. at Abstract, 3:9–10.
`1. Conventional GUI
`Before beginning our analysis of the claims for patent-eligibility, a
`discussion of conventional methods of trading is helpful. Figure 2 of the
`’411 patent depicts a GUI. Ex. 1001, Fig. 2 (“the Fig. 2 GUI”). According
`to Patent Owner, the Fig. 2 GUI illustrates the “widely accepted
`conventional wisdom regarding” electronic trading. PO Resp. 1; see also
`
`
`2 Tokyo Stock Exchange Operation System Division, Futures/Option
`Purchasing System Trading Terminal Operation Guide (1998) (Ex. 1006).
`Citations to this reference refer to its English translation (Ex. 1007).
`3 PCT Pub. No. WO 90/11571, pub. Oct. 4, 1990 (Ex. 1009, “Belden”).
`The page numbers referenced herein are those at the bottom of each page.
`4 U.S. Pat. No. 5,375,055, iss. Dec. 20, 1994 (Ex. 1005, “Togher”).
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`PO Resp. 28 (describing Fig. 2 GUI as “ubiquitous at the time” of the
`invention of the ’411 patent).
`
`Figure 2 of the ’411 patent is reproduced below.
`
`
`
`The Fig. 2 GUI displays market information in columns. See id. at 5:20–27,
`6:1–2. BidQty column 202 displays bid quantity, and BidPrc column 203
`displays corresponding bid price levels. AskQty column 205 displays ask
`quantities, and AskPrc column 204 displays corresponding ask price levels.
`Id. at 5:20–27 and 6:3–11. The inside market (i.e., the best (highest) bid
`price and quantity and the best (lowest) ask price and quantity) is displayed
`in row one. Id. at 5:18–20. Rows 2–5 display the market depth, a list of
`next-best bids and asks. Id. at 5:20–24.
`
`Prices and quantities change dynamically based on real time
`information from the market. Id. at 5:27–29. The inside market, however, is
`always displayed in row 1, a fixed location. PO Resp. 2. Christopher H.
`Thomas testifies that other prior art GUIs, which are similar to the Fig. 2
`GUI, “displayed the locations for the best bid and ask prices such that the
`prices were displayed vertically (e.g., with the location for the best ask price
`being displayed above the location for the best bid price).” Ex. 2169 ¶ 60;
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`see also Ex. 1007, 107 (depicting a trading screen having a central order
`price column and corresponding ask and bid quantities in adjacent columns).
`
`In the Fig. 2 GUI, “the user could place an order by clicking on a
`location (e.g., a cell) in one of the price or quantity columns.” Ex. 2169
`¶ 56; see Ex. 1028, 7–8. According to Patent Owner,
`these types of tools permitted “single action” order entry that
`consisted of a trader presetting a default quantity and then
`clicking on a cell in the screen . . . to cause a trade order message
`to be sent to the exchange at the preset quantity and at the price
`value associated with that cell.
`Ex. 1028, 8.
`
`Other types of conventional trading GUIs used order entry tickets to
`send trade orders to an electronic exchange. PO Resp. 1. An order entry
`ticket is “in the form of a window, with areas in which the trader could fill
`out parameters for an order, such as the price, quantity, an identification of
`the item being traded, buy or sell, etc.” Ex. 2169 ¶ 48; see also Ex. 1001,
`2:42–55 (describing a trader manually entering trade order parameters).
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`2. Mercury Display
`The Mercury display is depicted in Figure 3, which is reproduced
`below.
`
`
`Figure 3 of the ’411 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 is like the Fig. 2 GUI in that both display market
`information in columns. Column 1005 is a price axis, which includes a
`plurality of price values for the commodity. See Ex. 1001, 7:55–66. The
`’411 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 7:57–58.
`Columns 1003 and 1004 are aligned with the price axis and dynamically
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`display bid and ask quantities, respectively, for the corresponding price
`values of the static price axis. See id. at 7:54–8:16. The ’411 patent
`explains that “[t]he exchange sends the price, order and fill information to
`each trader on the exchange” and that “[t]he physical mapping of such
`information to a screen grid can be done by any technique known to those
`skilled in the art.” Id. at 4:63–5:3.
`Unlike the prior art Fig. 2 GUI, the values in the price column of the
`Mercury Display “are static; that is, they do not normally change positions
`unless a re-centering command is received.” Id. at 7:64–66. The bid
`quantities and ask quantities move up and down as the market changes, and,
`thus, the location of the inside market moves up and down. See id. at 7:66–
`8:16.
`Similar to the prior art Fig. 2 GUI, a trader executes trades using the
`Mercury display by first setting the desired commodity and default
`parameters, such as default quantity. Id. at 9:35–49 and Fig. 6, step 1302.
`Column 1002 contains various parameters and information used to execute
`trades, such as the default quantity displayed in cell 1016. See id. at 8:35–
`9:3. A trader executes trades using the Mercury display by first setting the
`desired commodity and default parameters, such as default quantity. See id.
`at 9:35–49; 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 9:35–10:32; Fig. 6, steps 1306–
`1315. For example, a left click on “20” in column 1004, shown in Figure 3,
`will send an order to the market to buy 17 lots (i.e., the default quantity set
`in cell 1016 of column 1002) at a price of 90. See id. at 10:30–32.
`
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`E. Illustrative Claim
`As noted above, Petitioner challenges claims 1–28. Claims 1 and 26
`are independent. Claim 1 is illustrative of the claimed subject matter and is
`reproduced below:
`1. A method of displaying market information relating to and
`facilitating trading of a commodity being traded on an electronic
`exchange, the method comprising:
`receiving, by a computing device, market information for a
`commodity from an electronic exchange,
`the market
`information comprising an inside market with a current
`highest bid price and a current lowest ask price;
`displaying, via the computing device, a bid display region
`comprising a plurality of graphical locations, each graphical
`location in the bid display region corresponding to a different
`price level of a plurality of price levels along a price axis;
`displaying, via the computing device, an ask display region
`comprising a plurality of graphical locations, each graphical
`location in the ask display region corresponding to a different
`price level of the plurality of price levels along the price axis;
`dynamically displaying, via the computing device, a first
`indicator representing quantity associated with at least one
`trade order to buy the commodity at the current highest bid
`price in a first graphical location of the plurality of graphical
`locations in the bid display region, the first graphical location
`in the bid display region corresponding to a price level
`associated with the current highest bid price;
`upon receipt of market information comprising a new highest bid
`price, moving the first indicator relative to the price axis to a
`second graphical location of the plurality of graphical
`locations in the bid display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new highest bid price, wherein the
`second graphical location is different from the first graphical
`location in the bid display region;
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`dynamically displaying, via the computing device, a second
`indicator representing quantity associated with at least one
`trade order to sell the commodity at the current lowest ask
`price in a first graphical location of the plurality of graphical
`locations in the ask display region, the first graphical location
`in the ask display region corresponding to a price level
`associated with the current lowest ask price;
`upon receipt of market information comprising a new lowest ask
`price, moving the second indicator relative to the price axis to
`a second graphical location of the plurality of graphical
`locations in the ask display region, the second graphical
`location corresponding to a price level of the plurality of price
`levels associated with the new lowest ask price, Wherein the
`second graphical location is different from the first graphical
`location in the ask display region;
`displaying, via the computing device, an order entry region
`comprising a plurality of graphical areas for receiving single
`action commands to set trade order prices and send trade
`orders, each graphical area corresponding to a different price
`level along the price axis; and
`selecting a particular graphical area in the order entry region
`through a single action of a user input device to both set a
`price for a trade order and send the trade order having a
`default quantity to the electronic exchange.
`Ex. 1001, 12:23–13:16.
`
`
`ANALYSIS
`A. The Level of Ordinary Skill in the Art
`Notwithstanding the parties’ submissions of the level of ordinary skill
`in the art,5 we find that the level of ordinary skill in the art is reflected by the
`
`
`5 The parties’ submissions focus primarily on the degrees, occupations, and
`experience, as opposed to what the hypothetical person of ordinary skill in
`the art would have known at the time of the invention. As such, and as the
`
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`prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
`Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
`Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`B. 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); see Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct.
`2131, 2144 (2016) (concluding the broadest reasonable construction
`“regulation represents a reasonable exercise of the rulemaking authority that
`Congress delegated to the Patent Office”).
`Applying that standard, we interpret the claim terms of the ’411 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,
`30 F.3d 1475, 1480 (Fed. Cir. 1994). Petitioner and Patent Owner propose
`constructions for several claim limitations. Pet. 13–14; PO Resp. 26–28;
`Pet. Reply 9. For purposes of this Decision, we determine that no particular
`term requires explicit construction.
`C. Covered Business Method Patent
`Section 18 of the AIA6 provides for the creation of a transitional
`program for reviewing covered business method patents. A “covered
`
`
`triers of fact, based on the record before us, we do not find such information
`particularly helpful.
`6 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
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`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”) (Response to Comment 8).
`In its Petition, Petitioner contends that “while a patent needs only one
`claim directed to a CBM to be eligible for CBM review, all the claims
`qualify,” and particularly cites claims 1, 7, 8, and 10. Pet. 4.
`1. Data Processing or Other Operations used in a Financial
`Product or Service
`Petitioner asserts that claim 1 is directed to a covered business method
`because it recites activities that are financial in nature, including displaying
`market information and sending a trade order. 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 market
`information, including indicators of asks and bids in the market, setting trade
`order parameters, and sending a trade order to an electronic exchange.
`Patent Owner does not dispute that the claims are directed to a method
`used in the practice, administration, or management of a financial product or
`service and, instead, contends that the claims are not directed to “data
`processing” or “other operations” of the financial product or service. See PO
`Resp. 22. First, Patent Owner argues that “data processing” should be
`interpreted according to the definition of “data processing” found in the
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`glossary for class 705 of the United States Patent Classification System,
`which is “[a] systematic operation on data in accordance with a set of rules
`which results in a significant change in the data.” Id. at 22–23 (quoting Ex.
`2121, 4). Patent Owner argues that the claims of the ’411 patent are not
`directed to data processing under this definition because the claims are
`concerned with displaying information in a specific manner and not
`concerned with processing the information that is displayed. PO Resp. 22–
`23. According to Patent Owner, “the claimed invention is agnostic to what
`specific algorithm is used for processing or mapping the data.” Id. at 23
`(citing Ex. 1001, 4:64–5:4).
`Patent Owner’s contentions are unpersuasive. Patent Owner does not
`sufficiently explain why the definition of “data processing” found in the
`glossary for class 705 of the United States Patent Classification System is
`controlling, as opposed to the plain meaning of “data processing.” See Pet.
`Reply 31. In any event, claim 1 encompasses processing financial data
`associated with a commodity for displaying and processing financial data for
`sending a trade order for a commodity to an exchange. The ’411 patent
`explicitly discloses that market information that is received from an
`electronic exchange is processed to map it to the screen. See Ex. 1001,
`4:64–5:1 (“The present invention processes this information and maps it . . .
`to a screen.”); 11:36–38 (“referring to [t]he process for placing trade orders
`using the Mercury display”). This processing of financial data is used in the
`practice, administration, or management of a commodity, which is a
`financial product, and in the practice, administration, or management of
`electronic trading with an exchange, which is a financial service or activity.
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`Even if there is some disagreement as to whether claim 1 includes
`“data processing,” there appears to be no disagreement that the steps of
`claim 1 (displaying market information, setting trade order parameters, and
`sending a trade order to the electronic exchange) are operations used in the
`practice, administration, or management of a commodity or trading a
`commodity on an electronic exchange. See PO Resp. 22–23 (discussing
`only whether the ’411 patent claims “data processing”). The ’411 patent,
`thus, at least claims “other operations used in the practice, administration, or
`management of a financial product or service” (AIA § 18(d)(1)).
`For the reasons stated above, and based on the particular facts of this
`proceeding, we conclude that the ’411 patent “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” and meets that 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 [(1)] a
`technological feature that is novel and unobvious over the prior art; and [(2)]
`solves a technical problem using a technical solution.” 37 C.F.R.
`§ 42.301(b). Both prongs must be satisfied in order for the patent to be
`excluded as a technological invention. See Versata dev. Grp., Inc. v. SAP
`Am., Inc., 793 F.3d 1306, 1326–27 (Fed. Cir. 2015), Apple Inc. v. Ameranth,
`Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016) (not addressing arguments
`regarding whether the first prong was met when it was determine that the
`second prong—that the claimed subject matter as a whole does not solve a
`technical problem using a technical solution—was met).
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`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).
`
`With respect to the first prong, Petitioner contends that rather than
`reciting a technical feature that is novel or unobvious over the prior art, the
`claims of the ’411 patent generally recite trading software that is
`implemented on a conventional computer. Pet. 5–7. Patent Owner focuses
`on whether the claims “solve[] a technical problem using a technical
`solution.” PO Resp. 23–26. When addressing “whether the claimed subject
`matter as a whole recites a technological feature that is novel and unobvious
`over the prior art,” Patent Owner simply alleges that “Petitioners fail to
`address whether the claims recite a technical feature that is novel and
`unobvious.” PO Resp. 23. That is incorrect. That was specifically noted in
`our Institution Decision. Inst. Dec. 14–15.
`We are persuaded by Petitioner’s contentions that at least claim 1 of
`the ’411 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 ’411 patent
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`discloses that its system can be implemented “on any existing or future
`terminal or device” (Ex. 1001, 4:8–11), each of which is known to include a
`display, and discloses that the input device can be a mouse (id. at 4:12–15),
`which is a known input device. The ’411 patent further discloses that “[t]he
`scope of the present invention is not limited by the type of terminal or device
`used.” Id. at 4:11–12. The ’411 patent also explains that the programming
`associated with the GUI is insignificant. See, e.g., Ex. 1001, 4:63–5:4
`(explaining that the “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”). That at least claim 1 of the ’411 patent does not recite a
`novel and non-obvious technological feature is further illustrated below in
`our discussion of that claim being unpatentable under § 103. Accordingly,
`we are persuaded that at least claim 1 does not recite a technological feature
`that is novel and unobvious over the prior art.
`With respect to the second prong, Petitioner contends that the claims
`of the ’411 patent do not fall within § 18(d)(1)’s exclusion for
`“technological inventions” because the ’411 patent does not solve a
`technical problem using a technical solution. Pet. 7–9. Petitioner notes that
`“[a]ccording to the ’411 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 8 (citing Ex. 1001, 2:59–
`67). Petitioner contends that “the ’411 patent’s solution is not technical”
`because it simply “rearrange[d] how known and available market data is
`displayed on a GUI.” Id.
`
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`
`Patent Owner argues that the ’411 patent solves a technical problem
`using a technical solution. According to Patent Owner, the ’411 patent
`solves the problem of “the price value associated with the order entry
`location being selected changes, which results in placing an order at an
`unintended price—a data-entry problem.” PO Resp. 24 (citing Ex. 1001,
`2:60–67; Ex. 2180, 6).
`The ’411 patent describes the problem it solves as follows:
`[A]pproximately 80% [of the total time it takes to place an
`order] is attributable to the time required for the trader to read the
`prices displayed and to enter a trade order. The present invention
`provides a significant advantage during the slowest portion of the
`trading cycle—while the trader manually enters his order. . . .
`In existing systems, multiple elements of an order must be
`entered prior to an order being sent to market, which is time
`consuming for the trader. Such elements include the commodity
`symbol, the desired price, the quantity and whether a buy or a
`sell order is desired. The more time a trader takes entering an
`order, the more likely the price on which he wanted to bid or
`offer will change or not be available in the market. . . . In such
`liquid markets, the prices of the commodities fluctuate rapidly.
`On a trading screen, this results in rapid changes in the price and
`quantity fields within the market grid. If a trader intends to enter
`an order at a particular price, but misses the price because the
`market prices moved before he could enter the order, he may lose
`hundreds, thousands, even millions of dollars. The faster a trader
`can trade, the less likely it will be that he will miss his price and
`the more likely he will make money.
`Ex. 1001, 2:39–67 (emphasis added). “The inventors have developed the
`present invention which overcomes the drawbacks of the existing trading
`systems and dramatically reduces the time it takes for a trader to place a
`trade when electronically trading on an exchange.” Id. at 3:3–7.
`
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`As can be seen from the above, the problem disclosed in the ’411
`
`patent is the time it takes for a trader to manually enter trader orders on a
`market or exchange that is rapidly changing, so as to make a profit. This is a
`financial issue or a business problem, not a technical problem. If the market
`or exchange did not rapidly change, then there would be no need for a trader
`to enter orders rapidly. We, thus, are persuaded by Petitioner that the ’411
`patent does not solve a technical problem with a technical solution.
`
`Patent Owner’s argument that the patent is directed to a data-entry
`problem is misplaced. Column 2, lines 60–67 of the ’411 patent, upon
`which Patent Owner relies, does not disclose a problem of placing an order
`at an unintended price because a price value associated with an order entry
`location changes as it is selected. As can be seen from the quoted portions
`of the ’411 patent above, column 2, lines 60–67 discloses that the time it
`takes for a trader to manually enter trader orders on a market or exchange
`that is rapidly changing is a problem because it could cause the trader to
`miss its intended price. See Ex. 1001, 2:39–67. Further, Patent Owner’s
`reliance on Exhibit 2180 is misplaced. Exhibit 2180 is the district court’s
`order addressing claimed subject matter of U.S. Patent No. 6,772,132 and
`U.S. Patent No. 6,766,304. The decision relied upon a feature not required
`by claim 1 of the ’411 patent— a static price axis. Ex. 2180, 7 (“the
`invention keeps the prices static in position”). Although claim 1 of the ’411
`patent requires a price axis, it does not require the price axis to be static. See
`Ex. 1001, 12:23–13:16. Claim 1 does not preclude the price axis from
`changing as the market information updates or preclude a price value
`associated with the order entry location to change as it is selected. We, thus,
`
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`are not persuaded by Patent Owner that the ’411 patent solves a technical
`problem using a technical solution.
`
`We are persuaded by Petitioner that at least claim 1 does not recite a
`technological feature that is novel and unobvious over the prior art and does
`not solve a technical problem using a technical solution. Accordingly, we
`determine that at least one of the claims of the ’411 patent recites subject
`matter that is not a technological invention.
`3. Conclusion
`In view of the foregoing, we conclude that the ’411 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.
`D. Section 101 Patent-Eligible Subject Matter
`Petitioner challenges claims 1–28 as directed to patent-ineligible
`subject matter under 35 U.S.C. § 101. Pet. 14–25. Patent Owner disagrees.
`PO Resp. 5–22.
`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 26–28, which are
`directed to a “computer readable medium,” are “broad enough to encompass
`a transitory, propagating signal that is encoded, which is not eligible for
`patenting.” Pet. 17 (citing In re Nuijten, 550 F.3d 1346, 1357 (Fed. Cir.
`2007)); Pet. Reply 8–9. Petitioner contends that “[u]nder the broadest
`reasonable interpretation (‘BRI’), the scope of this term is broad enough to
`
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`CBM2015-00181
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`encompass a transitory, propagating signal that is encoded.” Pet. 17.
`Petitioner explains that the specification neither defines this term nor
`provides examples. Id. In our Institution Decision, we made an initial
`determination that the broadest reasonable interpretation of the “computer
`readable medium” recited in claims 26–28 is “any medium that participates
`in providing instruction to a processor for execution and having program
`code recorded thereon.” Inst. Dec.
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