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`Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 143
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` Entered: February 17, 2017
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`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.
`____________
`
`CBM 2015-00179
`Patent 7,533,056 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
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`I. INTRODUCTION
`IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc.,
`TradeStation Securities, Inc., TradeStation Technologies, Inc., and IBFX,
`Inc. (collectively, “Petitioner”) filed a Petition requesting a covered business
`method patent review of claims 1–15 of U.S. Patent No. 7,533,056 B2 (Ex.
`1001, “the ’056 patent”). Paper 9 (“Pet.”).1 In response, Trading
`Technologies International, Inc. (“Patent Owner”) filed a Patent Owner
`Preliminary Response. Paper 21 (“Prelim. Resp.”). Upon consideration of
`the Petition and Preliminary Response, we instituted trial as to claims 1–15 of
`the ’056 patent. Paper 23 (“Dec.”).
`Subsequent to institution, Patent Owner filed a Corrected Patent
`Owner Response (Paper 81 (“PO Resp.”)) and Petitioner filed a Reply (Paper
`110 (“Pet. Reply”)). Petitioner filed a Motion to Exclude (Paper 116 (“Pet.
`Mot. to Exclude”)) Exhibits 2300, 2301, 2304–2316, 2318–2324, 2326–
`2330, 2030, and 2032. Patent Owner filed an Opposition to the Motion to
`Exclude (Paper 117 (“PO Exclude Opp.”)), and Petitioner filed a Reply
`(Paper 120 (“Pet. Exclude Reply”)).
`Patent Owner filed a Motion to Exclude (Paper 114 (“PO Mot. to
`Exclude”)) Exhibits 1003, 1007, and portions of Exhibits 1059 and 1060.
`Petitioner filed an Opposition to the Motion to Exclude (Paper 118 (“Pet.
`Exclude Opp.”)), and Patent Owner filed a Reply (Paper 121 (“PO Exclude
`Reply”)).
`
`
`1 CQG, Inc. and CQGT, LLC, originally part of “Petitioner,” settled with
`Patent Owner. The proceeding was terminated with respect to CQG, Inc. and
`CQGT, LLC. Paper 27.
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`An oral hearing was held on October 19, 2016, and a transcript of the
`hearing is included in the record (Paper 134 (“Tr.”)).2
`For the reasons that follow, we determine that Petitioner has shown by
`a preponderance of the evidence that claims 1–15 of the ’056 patent are
`unpatentable.
`
`A. Related Matters
`The ’056 patent is involved in the following lawsuit: TT v. BGC
`Partners, Inc., et al., No. 1:10-cv-00715 (N.D. Ill.). Pet. 3. In compliance
`with 37 C.F.R. § 42.302(a), Petitioner certifies that it has been sued for
`infringement of the ’056 patent. Id. Patent Owner does not challenge
`Petitioner’s certification that it has been sued for infringement of the ’056
`patent.
`
`B. The ’056 Patent
`The Specification of the ’056 patent describes a user interface for an
`electronic trading system that allows a remote trader to view trends for an
`item, which assists the trader to anticipate demand for an item. Ex. 1001,
`2:8–26.
`
`
`2 After oral hearing, the Federal Circuit issued a decision, Trading
`Technologies International, Inc., v. CQG, INC., No. 2016-1616, 2017 WL
`192716 (Fed. Cir. Jan. 18, 2017), determining that the subject matter claimed
`in two other tangentially related patents to the ’056 patent are patent-eligible
`under § 101. Petitioner and Patent Owner, with authorization (Paper 137),
`each filed supplemental briefing addressing the impact of that decision on
`this proceeding. Paper 138 (“PO Br.”); Paper 140 (“Pet. Br.”).
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`C. Illustrative Claim
`Claim 1 of the ’056 patent is the only independent claim:
` A method of operation used by a computer for displaying
`1.
`transactional information and facilitating trading in a system
`where orders comprise a bid type or an offer type, the
`method comprising:
`
`
`
`receiving bid and offer information for a product from an
`electronic exchange, the bid and offer information
`indicating a plurality of bid orders and a plurality of offer
`orders for the product;
`
`displaying a plurality of bid indicators representing
`quantity associated with the plurality of bid orders, the
`plurality of bid indicators being displayed at locations
`corresponding to prices of the plurality of bid orders
`along a price axis;
`
`displaying a plurality of offer indicators representing
`quantity associated with the plurality of offer orders, the
`plurality of offer indicators being displayed at locations
`corresponding to prices of the plurality of offer orders
`along the price axis;
`
`receiving a user input indicating a default quantity to be
`used to determine a quantity for each of a plurality of
`orders to be placed by the user at one or more price
`levels;
`
`receiving a user input indicating a desired price for an
`order to be placed by the user, the desired price being
`specified by selection of one of a plurality of locations
`corresponding to price levels along the price axis; and
`
`sending the order for the default quantity at the desired
`price to the electronic exchange.
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`D. Grounds of Unpatentability
`We instituted review of claims 1–15 on the following grounds:
`References
`Basis
`Challenged Claims
`n/a
`§ 101
`1–15
`TSE3, Togher4, Schott5, and Cooper6
`§ 103
`1–15
`Silverman7, Togher, Cooper, and
`§ 103
`1–15
`Hogan8
`
`
`E. Covered Business Method Patent
`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.” Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125
`Stat. 284, 329 (2011) (“AIA”) § 18(d)(1); see 37 C.F.R. § 42.302. 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). For purposes of
`
`
`3TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1004) (“TSE”).
`4 U.S. Patent No. 5,375,055, issued Dec. 20, 1994 (Ex. 1008) (“Togher”).
`5 U.S. Patent No. 5,619,631, issued Apr. 8, 1997 (Ex. 1009) (“Schott”).
`6Alan Cooper, ABOUT FACE: THE ESSENTIALS OF USER INTERFACE DESIGN,
`First Edition (1995) (Ex. 1015) (“Cooper”).
`7 U.S. Patent No. 5,136,501, issued Aug. 4, 1992 (Ex. 1010) (“Silverman”).
`8 U.S. Patent No. 5,414,809, issued May 9, 1995 (Ex. 1011) (“Hogan”).
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`determining whether a patent is eligible for a covered business method patent
`review, the focus is on the claims. A patent need have only one claim
`directed to a covered business method to be eligible for review.
`
`1.
`
`Financial Product or Service
`
`Petitioner argues that the ’056 patent is a patent that claims a method
`for performing data processing or other operations used in the practice,
`administration, or management of a financial product or service. Pet. 4–5. In
`particular, Petitioner argues that claim 1 requires receiving bid and offer
`information of a product from an electronic exchange, displaying the bid and
`offer information to a user, receiving a user input indicating a default
`quantity and price for an order(s), and sending the order(s) to an electronic
`exchange. Id. Petitioner asserts that each of these activities are inherently
`financial in nature, such as receiving bid and offer information and
`displaying it to a trader. Displaying market information, Petitioner asserts, is
`a financial activity. Id. Receiving trader inputs for a trade and sending a
`trade order to an exchange, Petitioner asserts, involves trading on an
`exchange, a financial activity. Id. (citing Ex. 1044, 324–325).
`Notwithstanding Patent Owner’s arguments, which we address below,
`we are persuaded by Petitioner’s showing, which we adopt as our own, that
`the ’056 patent is directed to a method for performing data processing or
`other operations used in the practice, administration, or management of a
`financial service. Here, Petitioner asserts, and we agree, that claim 1 is
`directed to a method for displaying (e.g., “other operations”) market
`information to a trader, which is a financial activity. Petitioner further
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`asserts, and we agree, that claim 1 also is directed to receiving trader inputs
`for a trade and sending a trade order to an exchange (e.g., trading on an
`exchange, which also lies under the “other operations” prong of CBM),
`which is a financial activity.
`Patent Owner argues that neither the Petitioner nor this panel has
`proposed any definition of the CBM “data processing,” and that the claims of
`the ’056 patent are directed to a specific GUI tool, and not directed to data
`processing. PO Resp. 33. Patent Owner’s argument is misplaced because the
`definition for 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 . . . .” See, e.g., 37 C.F.R. § 42.301(a), (emphasis added).
`It is clear to us that Petitioner relies on the “other operations” part of the
`definition to make its case. This is exemplified in showing that it is the
`displaying and trading on an exchange elements of claim 1 that Petitioner
`relies on as showing “other operations” which are used in the practice of a
`financial service (trading on an exchange). Patent Owner does not rebut this
`showing.
`In any event, we are not persuaded by Patent Owner’s argument that
`the claims are directed to a specific GUI tool that displays information on a
`computer in a specified manner, but not concerned with processing the
`information that is displayed. PO Resp. 33–34 (citing Ex. 2168 ¶¶ 25–28).
`Claim 1 is directed to “[a] method of operation used by a computer for
`displaying transactional information and facilitating trading in a system.”
`Patent Owner has not explained why a method of operation used by a
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`computer does not include data processing. Rather, the argument, and the
`testimony to which we are directed (e.g., Ex. 2168 ¶¶ 25–28) are not
`commensurate in scope with the claims. Indeed, neither Patent Owner nor
`Eric Gould-Bear account for or discuss the specific claim language. For all
`of these reasons, we are not persuaded by Patent Owner’s arguments. We
`determine that Petitioner has shown sufficiently that claim 1 claims a method
`for performing data processing or other operations used in the practice,
`administration, or management of a financial product or service.
`
`2.
`
`Exclusion for Technological Inventions
`
`As indicated above, even if a patent includes claims that would
`otherwise be eligible for treatment as a covered business method, review of
`the patent is precluded if the claims cover only “technological invention[s],”
`as defined by 37 C.F.R. § 42.301(b). Petitioner asserts that the ’056 patent
`claims fail to recite any technological feature that is novel and unobvious
`over the prior art, and do not solve a technical problem with a technical
`solution. Pet. 5–9. In particular, Petitioner argues that the claims recite
`trading software that is implemented using conventional computer hardware,
`servers, and networks, directing attention to a description in the ’056 patent
`that generically refers to “personal computers, terminals as part of a network,
`or any other computing device” and no specific hardware to carry out the
`invention. Id. at 6–7 (citing Ex. 1001, 4:34–36). Petitioner also argues that
`electronic trading was well known as of the filing date. Id. (citing Ex. 1006,
`1).
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`Notwithstanding Patent Owner’s arguments, which we address below,
`we are persuaded by Petitioner’s showing, which we adopt as our own, that
`the claimed subject matter as a whole does not recite a technological feature
`that is novel and unobvious over the prior art. We agree with Petitioner that
`claim 1 is directed to well-understood, routine, and conventional steps of
`receiving market information and displaying it graphically to a trader, who
`uses the information to facilitate trading a commodity. Id.
`For example, the “BACKGROUND OF THE INVENTION” section
`of the ’056 patent explains that it was well known for an exchange to record
`all transactions for a particular item and to replay or post to the individual
`traders outstanding bids with the highest values and outstanding offers with
`the lowest value, along with a quantity specified for each order, to facilitate
`trading a commodity. Ex. 1001, 1:37–41. There is no indication in the ’056
`patent that the inventors invented gathering market information, displaying it
`to a trader, and using the information to facilitate trading a commodity. The
`use of a computer to perform these functions also was known in the art at the
`time of the invention, and the ’056 patent does not claim any improvement of
`a computing device.
`Patent Owner argues that the ’056 patent is for a technological
`invention because the claims, previously allowed by the Office, are directed
`to a novel and nonobvious GUI tool. PO Resp. 29–30. Patent Owner argues
`that it is irrelevant that the claimed invention can be implemented on a
`conventional computer and that use of known technologies does not render
`claims non-technical. Id. at 29–30, 31–32. Rather the inquiry, Patent Owner
`argues, relates to the claimed software solution (e.g., an improved GUI tool),
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`which here is “technology that improves, even transforms, the computer so it
`performs functions it previously could not.” Id. at 29–30. Patent Owner
`argues that Petitioner ignores the claimed GUI improvement. Id.
`We disagree with Patent Owner that Petitioner ignored the claimed
`GUI improvement. Petitioner need not have addressed what is not present in
`the claims. As explained above, claim 1 is directed to gathering market
`information, displaying it to a trader, and the trader using the information to
`facilitate trading a commodity, features that were well known at the time of
`the invention. Moreover, there is no specific computer, program, or
`processing described in the ’056 patent beyond what was known in the art at
`the time of the invention. Conversely, Patent Owner does not explain how
`broad claim 1 recites a GUI improvement. Our reviewing court has held that
`“the presence of a general purpose computer to facilitate operations through
`uninventive steps” does not render a claim a technological invention within
`the meaning of the statute. See Versata dev. Grp., Inc. v. SAP Am., Inc., 793
`F.3d 1306, 1327 (Fed. Cir. 2015); SightSound Techs., LLC v. Apple Inc., 809
`F.3d 1307, 1315 (Fed. Cir. 2015). So it is here.
`Petitioner also argues that the claimed subject matter does not solve a
`technical problem using a technical solution, because the problem is a
`financial one and the solution is to rearrange available market data on a
`display. Pet. 8–9. Notwithstanding Patent Owner’s arguments, which we
`address below, we are persuaded by Petitioner’s showing, which we adopt as
`our own, that the problem noted in the Specification of the ’056 patent is not
`a technical one and no technical solution is used. The ’056 patent
`Specification highlights the problem and importance of informing a trader of
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`certain stock market events so that the trader may use such information to
`facilitate trading a commodity. Ex. 1001, 2:19–26. However, informing a
`trader of certain stock market trends or events is more of a financial problem
`than a technical problem to which there is not a technical solution.
`Patent Owner argues that the problem solved was with existing
`computer-trader interfaces, which is a technical problem. PO Resp. 31.
`Patent Owner argues that the claims recite a new GUI design addressing the
`problem with the old GUI design and that the claimed GUI improvement
`necessarily claims a technical solution to a technological problem. Id. We
`are not persuaded by Patent Owner’s arguments that the claims are directed
`to solving a technical problem using a technical solution because Patent
`Owner’s arguments are not commensurate in scope to the breadth of the
`claims.
`For all of the foregoing reasons, the subject matter of at least claim 1 is
`not a “technological invention” under 37 C.F.R. § 42.301(b), and the ’056
`patent is eligible for a covered business method patent review.
`
`II. ANALYSIS
`
`A. Claim Construction
`In a covered business method patent review, claim terms in an
`unexpired patent are given their broadest reasonable construction in light of
`the specification of the patent in which they appear. 37 C.F.R. § 42.300(b);
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142–46 (2016). Under
`the broadest reasonable interpretation, claim terms are generally given their
`ordinary and customary meaning, as would be understood by one of ordinary
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`skill in the art in the context of the entire disclosure. In re Translogic Tech.,
`Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007). Any special definition for a
`claim term must be set forth with reasonable clarity, deliberateness, and
`precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Only terms
`which are in controversy need to be construed, and only to the extent
`necessary to resolve the controversy. Vivid Techs., Inc. v. Am. Sci. & Eng’g,
`Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`Petitioner proposes constructions for “(offer and bid) indicators
`representing quantity” and “indicators, icons, and tokens.” Pet. 15–16, 18–
`20. In our Decision to Institute, we determined that Petitioner’s proposed
`interpretations for these terms were consistent with the broadest reasonable
`construction, and, therefore, adopted Petitioner’s proposed interpretations.
`Dec. 11. Neither party has indicated that our interpretations were improper
`and we do not perceive any reason or evidence that now compels any
`deviation from our initial determinations. Accordingly, the following
`constructions apply to this Decision:
`Claim Term
`(offer and bid) indicators
`representing quantity
`indicators, icons, and tokens
`
`
`Construction
`includes alphanumeric and graphical
`indicators
`a symbol such as an alphanumeric
`character or a graphic representation
`of an item
`
`
`For purposes of this decision, we find it necessary to construe “price
`axis” (claim 1) and “order icon indicating the user’s order” (claim 5).
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`Price Axis
`Claim 1 recites a price axis in several instances. For example, claim 1
`recites bid and offer indicators being displayed along a price axis. Ex. 1001,
`14:1–10. Petitioner proposes that “price axis” be interpreted to mean “a
`reference line for plotting prices, including labeled, unlabeled, visible and
`invisible reference lines.” Pet. 14–15. Patent Owner does not disagree with
`Petitioner’s proposed interpretation. Rather, Patent Owner argues that
`Petitioner’s proposed interpretation requires clarification “that a price axis
`cannot be a mere ordered list of prices that omits prices when there are no
`orders at that price.” PO Resp. 5.9
`Patent Owner urges a “clarification” to Petitioner’s proposed
`interpretation that would require a price axis to include intervening price
`levels even when there are no bids/asks at those price levels. PO Resp. 4–7.
`This clarification, Patent Owner argues, is supported by the Specification of
`the ’056 patent and the prosecution history. Id. For the following reasons,
`we are not persuaded that Patent Owner’s proposed “clarification” to
`Petitioner’s proposed interpretation results in the broadest reasonable
`interpretation of the term “price axis.”
`We begin with the words of claim 1. Claim 1 recites a price axis, but
`does not otherwise further expand on what constitutes a price axis. At the
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`9 In our Decision to Institute, and upon taking into consideration the parties’
`arguments and supporting evidence, we interpreted “price axis” to mean “a
`reference line for plotting prices, including labeled, unlabeled, visible and
`invisible reference lines.” Dec. 11. Petitioner agrees with that interpretation,
`while Patent Owner seeks to clarify the interpretation. Pet. Reply 11–12; PO
`Resp. 4–7.
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`outset, it appears to us that Patent Owner does not dispute that a price axis is
`a reference line for plotting prices, including labeled, unlabeled, visible and
`invisible reference lines. PO Resp. 7, n.1. We agree with Petitioner and
`Patent Owner that the broadest reasonable interpretation of “price axis” is a
`reference line for plotting prices, including labeled, unlabeled, visible and
`invisible reference lines for the reasons discussed in the Petition and
`supported by record evidence. Pet. 14–15; Ex. 1032 ¶ 71; Ex. 1016, 123–
`137. Patent Owner, however, would additionally add that a list of prices that
`do not contain gaps in between prices is not a price axis. Id. at 5. In support
`of its contentions, Patent Owner argues that the vertical axis (the “value
`axis”) seen in Figures 3A, 3B, 3C, and 4 of the ’056 patent describes that
`when there are no orders at a particular value or price, the value or price level
`remains displayed. Id. at 5–6 (citing Ex. 2169 ¶¶ 37–43).
`We do not agree with Patent Owner that the term “price axis” requires
`reading into the claim the additional “clarification” that a list of prices that do
`not contain gaps in between prices is not a price axis. There is nothing in the
`claim language itself that describes gaps or how data is arranged along the
`price axis or what contains a price axis. The passages and figures of the ’056
`patent that Patent Owner (and Mr. Thomas) directs attention to are examples
`or embodiments of what is claimed, and do not indicate that Patent Owner
`disclaimed or limited price axis to consist of a list of prices that contains gaps
`in between prices. Moreover, Mr. Thomas’ illustration of what constitutes a
`price axis is conclusory and not supported by record evidence. Ex. 2169 ¶¶
`41–42. He has not directed attention to any evidence in support of his
`testimony as to what does and does not constitute a price axis as illustrated in
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`paragraph 41 of his declaration. As pointed out by Petitioner, an axis may be
`represented by scale breaks or logarithmic scales, and thus, need not retain an
`order of gaps as Patent Owner and Mr. Thomas contend. Pet. Reply 11–12;
`Ex. 1058, 103–109.
`We also have considered Patent Owner’s arguments and evidence that
`remarks made by the then applicant during prosecution of the application that
`matured into the ’056 patent amount to an express and clear disclaimer of the
`meaning for price axis. PO Resp. 6–7 (citing Ex. 1002, 178–179; Ex. 2169 ¶
`39). We are not persuaded by such arguments because the comments made
`during prosecution have not been shown to amount to a disclaimer of having
`a price axis without gaps in between prices. For example, Patent Owner
`directs attention to page 178 of Exhibit 1002 from the prosecution file in
`support of its disclaimer argument. On that page, however, is quoted
`language from several lines of the claim with an argument just prior stating
`that Silverman does not describe an axis of prices and all that is contained in
`the quoted language. Patent Owner has not explained sufficiently why we
`should construe such general remarks as a disclaimer. We also have
`reviewed the remarks made by the then applicant that the applied prior art
`displayed prices for which orders exist, but do not agree that Patent Owner
`has shown why such comments amount to a clear disclaimer or disavowal of
`the scope of the term “price axis.” To disavow claim scope, “the
`specification or prosecution history [must] make clear that the invention does
`not include a particular feature.” GE Lighting Sols., LLC v. AgiLight, Inc.,
`750 F.3d 1304, 1309 (Fed. Cir. 2014) (internal citation, quotation, and
`alterations omitted).
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`For all of these reasons, we are not persuaded by Patent Owner’s
`arguments regarding the claimed price axis. Based on the record before us,
`the broadest reasonable interpretation in light of the specification of a “price
`axis” is a reference line for plotting prices, including labeled, unlabeled,
`visible and invisible reference lines.
`Order Icon Indicating the User’s Order
`Claim 5 depends directly from claim 1 and recites “displaying an order
`
`icon at a location that corresponds to the desired price level along the price
`axis, the order icon indicating the user’s order at the electronic exchange.”
`(Emphasis added). Patent Owner argues that an “order icon indicating the
`user’s order at the electronic exchange” should be interpreted to mean “an
`icon indicating to the user that the user has an order at a particular level along
`the price axis, distinct from other orders at the same level.” PO Resp. 9.
`Petitioner argues that no construction of the phrase is necessary and that
`Patent Owner’s construction is inconsistent with Figure 3A, which shows the
`user’s order aggregated with other users. Pet. Reply 12. Petitioner further
`argues that any icon that indicates a user’s order, whether aggregated with
`other orders or separate, meets the claim term. Id.
`
`We agree with Petitioner. There is nothing in the language of claim 5
`that requires indicating the specific user order (separating it out from all other
`orders) or indicating to the user that it is his order. If an order is placed by a
`user, resulting in the total quantity of orders placed at that same price to
`increase, the total number would indicate an increase, and thus, indicate the
`user’s order. Patent Owner argues that because claim 1 recites bid indicators
`and offer indicators, an order icon must represent something distinct from the
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`bid/offer indicators. PO Resp. 7–8. But even Patent Owner does not explain
`why an order icon cannot be one of the offer or bid indicators. Indeed, for
`the embodiment that Patent Owner directs attention to there is no distinction
`between offer and bid indicators with order icons (an order icon is one of the
`indicators). Id. We agree with Petitioner that a person of ordinary skill in
`the art would have understood the ’056 patent to use “icons” and “indicators”
`interchangeably. See, e.g., Pet. 18–20. Thus, we disagree with Patent Owner
`that the “order icon” of claim 5 cannot be one of the offer or bid indicators.
`
`For all of the above reasons, we decline to interpret an “order icon
`indicating the user’s order at the electronic exchange” to mean “an icon
`indicating to the user that the user has an order at a particular level along the
`price axis, distinct from other orders at the same level.”
`
`B. The Level of Ordinary Skill in the Art
`Notwithstanding the parties’ submissions of the level of ordinary skill
`in the art10, we find that the level of ordinary skill in the art is reflected by the
`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).
`
`
`10 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
`triers of fact, based on the record before us, we do not find such information
`particularly helpful.
`
`17
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`CBM2015-00179
`Patent 7,533,056 B2
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`C. 35 U.S.C. § 101 Asserted Ground of Unpatentability
`Petitioner contends that claims 1–15 of the ’056 patent are
`unpatentable under 35 U.S.C. § 101. Pet. 24–38. Patent Owner opposes.
`PO Resp. 11–28.
`Section 101 of Title 35, United States Code, provides: “Whoever
`invents or discovers any new and useful process, machine, manufacture, or
`composition of matter, or any new and useful improvement thereof, may
`obtain a patent therefor, subject to the conditions and requirements of this
`title.”
`The Supreme Court recognizes three exceptions to these statutory
`classes: laws of nature, natural phenomena, and abstract ideas. Alice Corp.
`Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Mayo
`Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293
`(2012). Although an abstract idea by itself is not patentable, a practical
`application of an abstract idea may be deserving of patent protection. Alice,
`134 S. Ct. at 2355. We must “consider 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.” Id. (citing Mayo, 132 S. Ct. at 1298, 1297). The claim must
`contain elements or a combination of elements that are “‘sufficient to ensure
`that the patent in practice amounts to significantly more than a patent upon
`the [abstract idea] itself.’” Id. (citing Mayo, 132 S. Ct. at 1294).
`Abstract Idea
`1.
`Petitioner argues that claim 1 encompasses the abstract idea of
`graphing (or displaying) bids and offers to assist a trader to make an order,
`18
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`CBM2015-00179
`Patent 7,533,056 B2
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`which is a fundamental economic practice. Pet. 27. Petitioner further argues
`that “[n]ot only is the abstract concept a fundamental economic practice, but
`it is an abstract idea of itself because it can be performed using pen and
`paper, or even in a trader’s mind.” Id. (citing CyberSource Corp. v. Retail
`Decisions, 654 F.3d 1366, 1372 (Fed. Cir. 2011) (unpatentable mental
`process performed with aid of pen and paper); Ex. 1032 ¶¶ 91, 205; Ex.
`1010, Silverman at FIG. 4 (prior-art plot of same); Ex. 1029, 44–46 (showing
`a page in a specialist’s book that plots bids and asks along a price axis)). In
`further support of Petitioner’s arguments that the claims are directed to an
`abstract idea because it can be performed in a trader’s mind, Petitioner directs
`attention to a description in the background of the invention section of the
`’056 patent stating that “the successful trader anticipates the rise or fall of the
`value of an item and performs his or her own transaction before the rest of
`the market is aware of the item’s potential gain or loss in value.” Ex. 1001,
`1:28–33.
`Petitioner further argues that the abstract idea analysis does not change
`merely because the claims include details such as displaying bid and offer
`indicators at locations corresponding to prices of bid and offer orders along
`the price axis, because those limitations are equally abstract ideas or are
`irrelevant because they merely provide a degree of particularity. Id. at 28
`(citing Ultramercial, 772 F.3d at 715 (an abstract idea is not concrete merely
`because the claims include a degree of particularity.)). Lastly, Petitioner
`argues that the claims do not solve any technological problem but rather are
`directed to solving a business problem, i.e., anticipating market movement by
`
`
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`19
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`CBM2015-00179
`Patent 7,533,056 B2
`
`providing a graphical representation of what a trader has done in his mind
`since trading began. Id. at 29 (citing Ex.
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