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`Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 145
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` Entered: April 27, 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.,
`Patent Owner,
`
`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.
`
`
`
`
`DECISION
`Denying Patent Owner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`CBM2015-00179
`Patent 7,533,056 B2
`
`
`Introduction
`Trading Technologies International, Inc. (“Patent Owner”) filed a
`Request for Rehearing (Paper 144, “Req. Reh’g”) of our Final Decision
`(Paper 143, “Dec.”) determining that claims 1–15 of U.S. Patent No.
`7,533,056 B2 (Ex. 1001, “the ’056 patent”) are unpatentable. Patent Owner
`requests rehearing only with respect to our decision that dependent claims 5–
`7 are (1) unpatentable under 35 U.S.C. § 103 over TSE, Togher, Schott, and
`Cooper, and (2) are not directed to patent eligible subject matter under 35
`U.S.C. § 101. Req. Reh’g 1–2. For the reasons that follow, the Request for
`Rehearing is denied.
`
`Analysis
`A party requesting rehearing bears the burden of showing that the
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`specifically all matters we misapprehended or overlooked, and the place
`where each matter was previously addressed in a motion, an opposition, or a
`reply. Id.
`Patent Owner requests rehearing of our determination that dependent
`claims 5–7 are not patent eligible under 35 U.S.C. § 101. Req. Reh’g 2, 8–9.
`Patent Owner argues that we (1) overlooked that dependent claims 5–7 recite
`an inventive concept, (2) failed to take into account guidance from Trading
`Technologies International, Inc., v. CQG, INC., No. 2016-1616, 2017 WL
`192716 (Fed. Cir. Jan. 18, 2017), and (3) failed to consider the claimed
`combination as a whole. Id. Patent Owner’s arguments are not persuasive.
`
`
`
`2
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`
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`CBM2015-00179
`Patent 7,533,056 B2
`
`
`First, the rehearing request never points to any language in any of
`claims 5–7 as allegedly claiming an inventive concept. Rather, Patent
`Owner quotes language from independent claim 1. Req. Reh’g 8. In
`addition, Patent Owner has not directed us to a place where it previously
`argued that claims 5–7 recite an inventive concept.1 Thus, we could not
`have overlooked something that was never presented. In any event, we
`considered whether all of the claims, including dependent claims 5–7,
`constitute an inventive concept. Dec. 26–29. Patent Owner provides no
`persuasive reason for us to modify our Decision.
`We also disagree with Patent Owner that we “failed to take into
`account the Federal Circuit’s guidance in assessing that these claims [5–7]
`are directed to an inventive concept.” Req. Reh’g 9. We considered and
`discussed both Supreme Court and Federal Circuit guidance emanating from
`several decisions relevant to the facts of this case. Dec. 18–29. Patent
`Owner presents no sufficient reason for us to modify the Decision in that
`regard, as mere disagreement with a decision is not a sufficient basis for
`requesting rehearing.
`Patent Owner argues that claim 1 “as a whole provide[s] an
`unconventional combination of ‘receiving a user input indicating a desired
`
`
`1 Patent Owner’s arguments made in the Patent Owner Response (Paper 81)
`regarding 35 U.S.C. § 101 eligibility of claims 5–7 were directed to whether
`those claims added significantly more to claim 1 rendering them less
`abstract. PO Resp. 20–21. We considered such arguments and determined,
`even under Patent Owner’s proposed narrow interpretation of claims 5–7
`discussed in our Decision and here, supra, that claims 5–7 added nothing to
`render them less abstract. Dec. 25–26.
`3
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`CBM2015-00179
`Patent 7,533,056 B2
`
`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’ along with displaying bid and offer indicators
`corresponding to the same price axis,” and, thus, recites an inventive
`concept. Req. Reh’g 8 (citing PO Resp. 26). We are not persuaded by this
`argument. We already considered Patent Owner’s arguments that the claims
`include an inventive concept, but determined that those arguments were not
`persuasive. Dec. 26–29. For example, we explained with respect to the
`quoted language from claim 1:
`[T]o the extent that the claims require a GUI, a mere recitation
`of a GUI does not make the claim patent eligible. See Affinity
`Labs, 838 F.3d at 1257–58, Ameranth, 842 F.3d at 1236–1242,
`Internet Patent Corp., 790 F.3d at 1348–1349. A recitation of a
`generic GUI merely limits the use of the abstract idea to a
`particular technological environment. “Limiting the field of use
`of the abstract idea to a particular existing technological
`environment does not render any claims less abstract.” Affinity
`Labs, 838 F.3d at 1258 (citing Alice, 134 St. Ct. at 2358; Mayo,
`132 S. Ct. at 1294).
`
`Dec. 27.
`In rendering our Decision, we did not focus on individual claim
`elements and overlook the claimed combination as a whole as Patent Owner
`asserts. Req. Reh’g 8–9. Rather, we applied the Supreme Court’s guidance
`that to be patent eligible, a claim to an otherwise abstract idea must recite
`additional elements that constitute an inventive concept and that one looks to
`elements of each claim individually and as an ordered combination. Dec. 26
`(citing Alice Corp. Pty. Ltd. v. CLS Bank Int’l, 134 S. Ct. 2347, 2357 (2014)
`
`
`
`4
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`CBM2015-00179
`Patent 7,533,056 B2
`
`and Mayo Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289,
`1297–98 (2012). We considered elements of each claim individually and as
`an ordered combination. Dec. 26–29. And with respect to considering the
`claimed combination as a whole, we specifically held that “considering all of
`the elements as an ordered combination, we determine that the combined
`elements also do not transform the nature of the claims into a patent-eligible
`application.” Id. at 29 (emphasis added). Thus, Patent Owner’s argument is
`not persuasive.
`Patent Owner also seeks rehearing of our decision that claims 5–7 are
`unpatentable under 35 U.S.C. § 103 over TSE2, Togher3, Schott4, and
`Cooper5. Req. Reh’g 2–8. Essentially, Patent Owner disagrees with our
`interpretation of claim 5. Id. 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.” We did not adopt Patent Owner’s proposed
`interpretation such that the phrase means “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.” Dec. 16. Rather, we explained that claim 5
`was broad enough to also cover that when an order is placed by a user,
`
`
`2TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1004) (“TSE”).
`3 U.S. Patent No. 5,375,055, issued Dec. 20, 1994 (Ex. 1008) (“Togher”).
`4 U.S. Patent No. 5,619,631, issued Apr. 8, 1997 (Ex. 1009) (“Schott”).
`5Alan Cooper, ABOUT FACE: THE ESSENTIALS OF USER INTERFACE DESIGN,
`First Edition (1995) (Ex. 1015) (“Cooper”).
`5
`
`
`
`
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`CBM2015-00179
`Patent 7,533,056 B2
`
`resulting in the total quantity of orders placed at that same price to increase,
`that the total number displayed would indicate an increase, and thus, indicate
`the user’s order. In other words, we disagreed with Patent Owner that claim
`5 requires indicating the specific user order (separating it out from all other
`orders) or indicating to the user that it is his order. Id.
`In its rehearing request, Patent Owner argues that a person of ordinary
`skill in the art reading the claims and specification of the ’056 patent would
`understand that an “order icon” must show the user’s own individual orders.
`Req. Reh’g 4–6. These same arguments were presented in the Patent Owner
`Response and we addressed such arguments. Dec. 16–17. A rehearing
`request is not an opportunity to reargue points already considered by the
`panel. For these reasons, we are not persuaded that we need alter our
`original Decision.
`Patent Owner argues that because independent claim 1 recites “bid
`indicators” and “offer indicators,” and dependent claim 6 recites using three
`visual characteristics for the bid indicators, offer indicators, and order icon,
`the separately-claimed “order icon” in dependent claim 5 must represent
`something distinct from the bid/offer indicators. Req. Reh’g 6–7. We
`addressed this argument in our Decision, explaining
`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
`6
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`CBM2015-00179
`Patent 7,533,056 B2
`
`
`Patent Owner that the “order icon” of claim 5 cannot be one of
`the offer or bid indicators.
`
`Dec. 17 (emphasis added).
`
`Notably, in its rehearing request Patent Owner does not challenge our
`finding that the specification of the ’056 patent uses “icons” and “indicators”
`interchangeably and that in the embodiment Patent Owner directs attention
`to, in support of its proposed construction, the order icon is one of the
`indicators. For these reasons, we disagree with Patent Owner’s arguments
`that dependent claim 5 must represent something distinct from the bid/offer
`indicators of claim 1. Again, claim 5 is broad enough to cover distinct icons
`and indicators, or icons and indicators that are interchangeable. Neither the
`claim scope of claim 1 nor claim 6 alter our determination in that regard.
`
`Patent Owner also argues that dependent claim 7, which depends from
`claim 5, is instructive for interpreting claim 5. Req. Reh’g 7. Specifically,
`Patent Owner argues that claim 7 requires that the order icon indicate the
`default quantity working at the electronic exchange and that in order for the
`order icon to indicate the default quantity selected by the user, the order icon
`must indicate the user’s own order. Id. This argument in connection with
`construing claim 5 is newly presented and improper for our consideration.
`We need not and do not consider this newly presented argument. In any
`event, we observe that Patent Owner has not explained sufficiently, with any
`supporting evidence, why claim 7 informs a person of ordinary skill in the
`art that we must read claim 5 as narrowly as Patent Owner proposes.
`
`Lastly, Patent Owner contends that we misapprehended or overlooked
`that our interpretation of claim 5 is in contradiction with how we interpreted
`7
`
`
`
`
`
`CBM2015-00179
`Patent 7,533,056 B2
`
`claim 1 of a different patent owned by Patent Owner (U.S. Patent 7,212,999
`B2 (“the ’999 patent”)) involved in a different proceeding (CBM2016-
`00032). Id. at 2–3, 7–8. Notably, these arguments are presented for the very
`first time in connection with Patent Owner’s Rehearing Request and Patent
`Owner does not contend otherwise. Again, we need not consider a point
`raised for the first time in a rehearing request. In any event, we observe that
`the ’999 patent claim 1 is not the same as claim 5 in the ’056 patent, and
`neither are the facts or evidence presented in the two proceedings. Based on
`our observations alone, we are not persuaded that the interpretation of a
`different phrase in a different claim in a different patent should dictate how
`we should interpret claim 5 in this proceeding.
`For the foregoing reasons, Patent Owner’s Request for Rehearing is
`denied.
`
`
`PETITIONER:
`Robert Sokohl
`Lori Gordon
`Richard Bemben
`STERN, KESSLER, GOLDSTEIN & FOX P.L.L.C.
`rsokohl-ptab@skgf.com
`lgordon-ptab@skgf.com
`rbemben-ptab@skgf.com
`
`John C. Phillips
`FISH & RICHARDSON, P.C.
`CBM41919-0007CP1@fr.com
`
`
`
`
`8
`
`
`
`CBM2015-00179
`Patent 7,533,056 B2
`
`PATENT OWNER:
`Erika H. Arner
`Joshua L. Goldberg
`Kevin D. Rodkey
`Rachel L. Emsley
`Cory Bell
`FINNEGAN, HENDERSON, FARABOW,
`GARRET & DUNNER, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finnegan.com
`rache.emsley@finnegan.com
`cory.bell@finnegan.com
`
`Steven F. Borsand
`Jay Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt-patent-cbm@tradingtechnologies.com
`jay.knobloch@tradingtechnologies.com
`
`Michael D. Gannon
`Leif R. Sigmond, Jr.
`Jennifer Krurcz
`McDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`
`
`
`
`
`
`9
`
`
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