Trials@uspto.gov
`Tel: 571-272-7822
`
`Paper 12
`Entered: October 18, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`IBG LLC,
`INTERACTIVE BROKERS LLC,
`TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2016-00054
`Patent 7,693,768 B1
`_______________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`PETRAVICK, Administrative Patent Judge.
`
`DECISION
`Institution of Covered Business Method Patent Review
`37 C.F.R. § 42.208
`
`

`

`CBM2016-00054
`Patent 7,693,768 B2
`
`
`INTRODUCTION
`
`A. Background
`IBG LLC, Interactive Brokers, LLC, TradeStation Group, Inc., and
`TradeStation Securities, Inc. (collectively, “Petitioner”), filed a Petition
`requesting covered business method patent review of claims 1–23 (the
`“challenged claims”) of U.S. Patent No. 7,693,768 B2 (Ex. 1001, “the ’768
`patent”). Paper 4 (“Pet.”). Trading Technologies International, Inc. (“Patent
`Owner”) did not file a Preliminary Response.
`We have authority to determine whether to institute a covered
`business method review 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, 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 1–23 of the ’768 patent.
`
`B. Related Proceedings
`The parties indicate that the ’768 patent is the subject of numerous
`related U.S. district court proceedings. Pet. 2; Paper 6, 1–5.
`The application that issued as the ’768 patent ultimately claims, under
`35 U.S.C. § 320, the benefit of application 09/590,692, that issued as U.S.
`Patent No. 6,772,132. U.S. Patent No. 6,772,132 was the subject of
`petitions for covered business method patent review in TD Ameritrade
`Holding Corp. v. Trading Technologies International, Inc., CBM2014-
`00135 (PTAB), CQG, Inc. v. Trading Technologies International, Inc.,
`2
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`CBM2016-00054
`Patent 7,693,768 B2
`
`CBM2015-00058 (PTAB), and IBG LLC v. Trading Technologies
`International, Inc., CBM2015-00182 (PTAB). Trial was instituted, but later
`terminated due to settlement, for CBM2014-00135. Institution was denied
`for CBM2015-00058. Institution was granted for CBM2015-00182.
`Numerous other patents are related to the ’768 patent and the related
`patents are or were the subject of numerous petitions for covered business
`method patent review and reexamination proceedings. Pet. 2; Paper 6, 5–7;
`Paper 8, 1.
`
`
`C. Asserted Grounds
`Petitioner contends that the challenged claims are unpatentable under
`35 U.S.C. §§ 101 and 103 based on the following grounds (Pet. 16–80).
`References
`Basis Claims Challenged
`N/A
`§ 101
`1–23
`
`TSE1 and Belden2
`
`§ 103
`
`1–13, 15, 16, 18, and 21–23
`
`TSE, Belden, and Cooper3
`
`§ 103
`
`14, 17, 19, and 20
`
`Petitioner provides testimony from Kendyl A. Román (Ex. 1007) to
`support its challenges.
`
`
`
`
`1 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).
`2 PCT Pub. No. WO 90/11571, pub. Oct. 4, 1990 (Ex. 1012, “Belden”).
`3 Alan Cooper, About Face: The Essentials of User Interface Design (1995)
`(Ex. 1022).
`
`
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`CBM2016-00054
`Patent 7,693,768 B2
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`
`D. The ’768 Patent
`The ’768 patent is titled “Click Based Trading with Intuitive Grid
`Display of Market Depth.” Ex. 1001, (54). The ’768 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 ’768 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.
`
`
`Figure 3 of the ’768 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.
`
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`Patent 7,693,768 B2
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`
`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 7:33–44. The ’768 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 7:35–36. 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 7:32–47.
`The ’768 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 4:59–5:66.
`Column 1002 contains various parameters and information used to
`execute trades, such as the default quantity displayed in cell 1016. See id. at
`7:65–8:32. A trader executes trades using the Mercury display by first
`setting the desired commodity and default parameters, such as default
`quantity. See id. at 8:64–9:11; 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 9:1–54; Fig. 6, steps
`1306–1315.
`
`E. Illustrative Claim
`Claims 1 and 23 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 using a graphical user interface and a user
`input device, said method comprising:
`
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`
`receiving data relating to the commodity from the
`
`electronic exchange, the data comprising an inside market with a
`highest bid price and a lowest ask price currently available for
`the commodity;
`
`dynamically displaying via a computing device a first
`indicator in one of a plurality of areas in a bid display region,
`each area in the bid display region corresponding to a price level
`along a price axis, the first indicator representing a quantity
`associated with at least one order to buy the commodity at the
`highest bid price;
`
`dynamically displaying via the computing device a second
`indicator in one of a plurality of areas in an ask display region,
`each area in the ask display region corresponding to a price level
`along the price axis, the second indicator representing a quantity
`associated with at least one order to sell the commodity at the
`lowest ask price;
`
`displaying an order entry region comprising a plurality of
`locations for receiving single action commands to send trade
`orders, the plurality of location including:
`
`(a) at least one first fixed location corresponding to a first
`price level along the price axis associated with the highest bid
`price currently available in the market, wherein upon receipt of
`new data representing an updated highest bid price currently
`available for the commodity, the at least one first fixed location
`continues to correspond to the first price level even if the first
`price level is no longer associated with the highest bid price
`currently available in the market; and
`
`(b) at least one second fixed location corresponding to a
`second price level along the price axis associated with the lowest
`ask price currently available in the market, wherein upon receipt
`of new data representing an updated lowest ask price currently
`available for the commodity, the at least one second fixed
`location continues to correspond to the second price level even if
`the second price level is no longer associated with the lowest ask
`price currently available in the market;
`
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`
`updating the display of the first indicator such that the first
`
`indicator is moved relative to the price axis to a different area in
`the bid display region corresponding with a different price level
`along the price axis in response to receipt of new data
`representing au updated highest bid price currently available for
`the commodity;
`
`updating the display of the second indicator such that the
`second indicator is moved relative to the price axis to a different
`area in the ask display region corresponding with a different price
`level along the price axis in response to receipt of new data
`representing an updated lowest ask price currently available for
`the commodity; and
`
`setting a plurality of parameters for a trade order relating
`to the commodity and sending the trade order to the electronic
`exchange in response to a selection of a particular location of the
`order entry region by a single action of a user input device.
`Ex. 1001, 11:46–12:36.
`
`
`ANALYSIS
`
`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); Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131,
`2144–46 (2016) (upholding the use of the broadest reasonable interpretation
`standard). Applying that standard, we interpret the claim terms of the ’768
`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).
`7
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`CBM2016-00054
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`
`For purposes of this Decision, we determine that the only terms
`requiring an explicit construction in order to conduct properly our analysis
`are those discussed below.
`1. “single action”
`Petitioner contends that
`The ’768 patent specification defines this term: “[A]ny 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.” (’768 patent, 4:14-18; Román Decl. ¶ 76.)
`Pet. 14. Upon review, we agree, and adopt that construction for purposes of
`this decision.
`2. “computer readable medium having program code recorded
`thereon”
`Claim 23 recites “[a] 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. 14–15.
`Petitioner explains that the specification neither defines this term nor
`provides examples. Id. at 14.
`
`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. 1041 (Merriam-
`Webster’s Collegiate Dictionary (10th ed. 1998), 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
`
`
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`1857, 1859–60 (PTAB 2013) (precedential) (determining that the similar
`term, 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.
`
`B. Covered Business Method Patent
`Section 18 of the AIA4 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).
`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
`
`
`4 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
`
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`and sending a trade order, which are financial in nature. Pet. 4–5. 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
`receiving and displaying data related to a commodity traded on an exchange,
`setting parameters for a trade order, and sending a trade order to an
`electronic exchange. We, thus, determine that the ’768 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).
`
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`
`Both prongs must be satisfied in order for the patent to be excluded as
`a technological invention.
`Petitioner contends that rather than reciting a technical feature that is
`novel or unobvious over the prior art, the claims of the ’768 patent generally
`recite trading software that is implemented on a conventional computer.
`Pet. 5–7.
`We are persuaded by Petitioner’s contentions that at least claim 1 of
`the ’768 patent does not recite a novel and non-obvious technological
`feature. The specification of the ’768 patent treats as well-known all
`potentially technological aspects of the claims. For example, the ’768 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 ’768 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 ’768 patent also describes the programming
`associated with the GUI as insignificant. See, e.g., id. at 4:60–66
`(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”).
`Petitioner also asserts that the claims of the ’768 patent do not fall
`within § 18(d)(1)’s exclusion for “technological inventions” because the
`’768 patent does not solve a technical problem using a technical solution.
`Pet. 8–9. Petitioner notes that “[a]ccording to the ’768 patent, the ‘problem’
`
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`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, 2:50–63). Petitioner contends that “the ’768 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 9.
`We are persuaded that the ’768 patent does not solve a technical
`problem with a technical solution. The ’768 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, 2:3–62. 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 ’768 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.
`
`C. Section 101 Patent-Eligible Subject Matter
`Petitioner challenges claims 1–23 as directed to patent-ineligible
`subject matter under 35 U.S.C. § 101. Pet. 15–31.
`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
`
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`matter.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713–14 (Fed. Cir.
`2014).
`Initially, we note that Petitioner asserts that claim 23 is “broad enough
`to encompass a transitory, propagating signal that is encoded, which is not
`eligible for patenting.” Pet. 31 (citing In re Nuijten, 550 F.3d 1346, 1357
`(Fed. Cir. 2007)). As indicated above, we determine, for the purposes of this
`decision, 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, claim 23
`encompasses 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 — the process category.
`Even if claim 23 was to fit within one of the categories of patent-eligibility,
`we are persuaded that it does 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. Int’l., 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., 768 S. Ct. 1289, 1293
`
`
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`(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. 17.
`Independent claims 1 and 23 recite similar limitations, with claim 1
`being directed to a “method” and claim 23 being directed to a “computer
`readable medium.” We are persuaded that the challenged claims are more
`likely than not drawn to a patent-ineligible abstract idea. The ’768 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 and 23 are directed to displaying
`market information in a particular manner. Claim 1, for example, recites
`“dynamically displaying . . . a first indicator in one of a plurality of areas . .
`. corresponding to a price level along a price axis.” Although certain
`limitations, such as the example above, 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, 768 S. Ct. at 1297–98. The additional elements must be more than
`
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`“well-understood, routine, conventional activity.” Id. at 1298. On this
`record, Petitioner has established that the challenged claims of the ’768
`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.
`As noted above, the specification of the ’768 patent treats as well-
`known all potentially technical aspects of the claims. For example, the ’768
`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 ’768 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.
`Given the above, we determine that the elements of the claims do not
`transform the nature of the claims into a patent-eligible application of the
`abstract idea. They do not add significantly more to the abstract idea.
`3. Dependent Claims
`Petitioner contends that the additional elements recited by dependent
`claims 2–22 do not add significantly more to the abstract idea so as to render
`the claims patent-eligible. Pet. 25–29. On this record, we determine that
`Petitioner demonstrates that dependent claims 2–22 are more likely than not
`patent ineligible under 35 U.S.C. § 101.
`4. Conclusion
`Having considered the information provided in the Petition, we are
`persuaded that Petitioner has demonstrated that it is more likely than not that
`the challenged claims are unpatentable under 35 U.S.C. § 101.
`
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`D. Obviousness Challenges
`Section 103 forbids issuance of a claim when “the differences
`
`between the subject matter sought to be patented and the prior art are such
`that the subject matter as a whole would have been obvious at the time the
`invention was made to a person having ordinary skill in the art.” 35 U.S.C.
`§ 103. The ultimate determination of obviousness under § 103 is a question
`of law based on underlying factual findings. In re Baxter Int’l, Inc., 678
`F.3d 1357, 1362 (Fed. Cir. 2012) (citing Graham v. John Deere Co., 383
`U.S. 1, 17–18 (1996)). These underlying factual considerations consist of:
`(1) the “level of ordinary skill in the pertinent art,” (2) the “scope and
`content of the prior art,” (3) the “differences between the prior art and the
`claims at issue,” and (4) “secondary considerations” of non-obviousness
`such as “commercial success, long-felt but unsolved needs, failure of others,
`etc.”5 KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting
`Graham, 338 U.S. at 17–18).
`Petitioner challenges claims 1–13, 15, 16, 18, and 21–23 as having
`been obvious over TSE and Belden, claims 14, 17, 19, and 20 as having
`been obvious over TSE, Belden, and Cooper. Based on the record before us,
`we are persuaded that Petitioner has demonstrated that it is more likely than
`not that it will prevail at trial on those challenges.
`1. Claims 1–13, 15, 16, 18, and 21–23
`With respect to independent claims 1 and 23, Petitioner cites TSE as
`teaching each limitation of the claims except single-action order entry to
`
`
`5 At this stage in the proceedings, the record contains no evidence or
`arguments concerning secondary considerations.
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`send a trade order. See Pet. 31–53. Petitioner argues that TSE discloses
`placing a trade order by double-clicking a specific area on the
`Board/Quotation Screen to set a plurality of parameters for a trade order and
`then selecting a send button, but that TSE does not disclose single-action
`order entry. See id. at 34, 42–43, 50–51. Petitioner contends that Belden
`teaches single-action order entry and that it would have been obvious to one
`of ordinary skill in the art to incorporate Belden’s single-action order
`technique into TSE. Id. at 34–35, 43–45, 51–53. According to Petitioner,
`one of ordinary skill in the art would have been motivated to make such a
`modification because it would have reduced the time needed to place an
`order and reduced operator error. Id. at 36–37, 45–46, 52–53. The
`testimony of Petitioner’s declarant Kendyl Roman supports Petitioner’s
`analysis. See Ex. 1007 ¶¶ 77–123.
`A Figure that appears on page 137 of TSE is reproduced below.
`
`
`Figure depicting the displaying of the new order entry window.
`
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`TSE discloses that double-clicking on a specific area of the Board/Quotation
`Screen displays a new order entry window, which is automatically set with
`the information from the double-clicked area. Ex. 1017, 133, 139. 6 The
`new order entry window includes a send button for sending the order to a
`central system. Id. at 137, 143.
`
`Belden is titled “Simulated Live Market Trading System” and
`published on October 4, 1990. Ex. 1012, (54), (43). Belden discloses an
`electronic trading system for trading commodities, which has a display with
`icons representing active trades. Id. at 26–27.7 Belden discloses that
`“[t]rading is done by using the mouse to move a cursor onto the icon of a
`trader and pushing a button, i.e., ‘clicking’ on the icon.” Id. at 12. Belden
`discloses that a trader “benefits from the speed with which he can take or
`liquidate positions.” Id. at 4.
`On this record, we are persuaded by Petitioner’s evidence and analysis
`that it would have been obvious to one of ordinary skill in the art to
`incorporate Belden’s single-action order technique into TSE, to reduce the
`time needed to place an order and reduce operator error. Having considered
`the information provided in the Petition, we are persuaded that it is more
`likely than not that claims 1 and 23 are unpatentable under 35 U.S.C. § 103
`over TSE and Belden.
`With respect to dependent claims 2–22, upon consideration of the
`information provided in the Petition, we are persuaded by Petitioner’s
`evidence and analysis that it is more likely than not that claims 2–22 are
`
`
`6 We refer to the pagination inserted into Exhibit 1017 and not the original
`pagination.
`7 We refer to the pagination inserted into Exhibit 1012 and not the original
`pagination.
`
`
`
`18
`
`

`

`CBM2016-00054
`Patent 7,693,768 B2
`
`unpatentable under 35 U.S.C. § 103 over TSE and Belden. See Pet. 53–66;
`Ex. 1007 ¶¶ 124–160.
`
`
`2. Claims 14, 17, 19, and 20
`With respect to dependent claims 14, 17, 19, and 20, Petitioner
`contends that the combination of TSE and Belden teaches each limitation of
`the claims except that the first and second locations of the order entry region
`are within a cell and that the areas in the bid and ask display regions are a
`cell of a grid. Pet. 67–71. Petitioner contends that TSE suggests that its
`Board Screen uses a grid of cells because the figures on pages 137 and 138
`of TSE depicts a cursor in a rectangular region of price columns 11 and 12
`but does not explicitly disclose cells. Id. at 67. Petitioner relies upon
`Cooper to teach that it is well known to use a grid of cells because it allows
`for objects to neatly line up. Id. at 68. Petitioner states:
`it would have been obvious to a POSA to combine a grid of cells
`(as disclosed by Cooper) with TSE’s Board Screen. . . . The
`combination would have been nothing more than combining
`prior art GUI elements according to known methods to yield the
`predictable and desirable result of aligning or arranging the
`various number in the rows and columns of TSE’s Board Screen.
`Id. at 68. The testimony of Petitioner’s declarant Kendyl Roman supports
`Petitioner’s analysis. See Ex. 1007 ¶¶ 161–166.
`On this record, we are persuaded by Petitioner’s evidence and analysis
`that it would have been obvious to use a grid of cells with TSE’s Board
`Screen, to aligning or arranging the various number in the rows and columns
`of TSE’s Board Screen. Having considered the information provided in the
`Petition, we are persuaded that it is more likely than not that claims 14, 17,
`
`
`
`19
`
`

`

`CBM2016-00054
`Patent 7,693,768 B2
`
`19, and 20 are unpatentable under 35 U.S.C. § 103 over TSE, Belden, and
`Cooper.
`
`
`
`CONCLUSION
`For the foregoing reasons, we determine that the information
`presented in the Petition establishes that it is more likely than not that
`Petitioner would prevail in establishing the unpatentability of claims 1–23 of
`the ’768 patent.
`The Board has not made a final determination on the patentability of
`any challenged claims.
`
`
`ORDER
`
`For the reasons given, it is:
`ORDERED that a covered business method patent review is instituted
`
`as to:
`
`A. Claims 1–23 as being directed to patent ineligible subject matter
`under 35 U.S.C. § 101;
`B. Claims 1–13, 15, 16, 18, and 21–23 as being unpatentable under
`35 U.S.C. § 103 over TSE and Belden; and
`C. Claims 14, 17, 19, and 20 as being unpatentable under 35 U.S.C.
`§ 103 over TSE, Belden, and Cooper.
`FURTHER ORDERED that pursuant to 35 U.S.C. § 324(d) and
`37 C.F.R. § 42.4, notice is hereby given of the institution of a trial; the trial
`commencing on the entry date of this Order.
`
`
`
`
`
`20
`
`

`

`CBM2016-00054
`Patent 7,693,768 B2
`
`
`PETITIONER:
`
`Robert E. Sokohl
`Lori A. Gordon
`Richard M. Bemben
`Sterne, Kessler, Goldstein & Fox P.L.L.C.
`rsokohl-ptab@skgf.com
`lgordon-PTAB@skgf.com
`rbemben-PTAB@skgf.com
`
`PATENT OWNER:
`
`
`
`
`Erika H. Arner
`Joshua L. Goldberg
`Kevin Rodkey
`Rachel L. Emsley
`Cory C. Bell
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finnegan.com
`rachel.emsley@finnegan.com
`cory.bell@finnegan.com
`
`Michael Gannon
`Leif Sigmond
`Jennifer M. Kurcz