Trials@uspto.gov
`Tel: 571-272-7822
`
`
`
`Paper 33
`Entered: April 11, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.
`TRADESTATION SECURITIES, INC.,
`TRADESTATION TECHNOLOGIES, INC., and IBFX, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2015-00181
`Patent 7,676,411 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`Tel: 571-272-7822
`
`
`
`Paper 33
`Entered: April 11, 2016
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`_______________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`_______________
`
`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC.
`TRADESTATION SECURITIES, INC.,
`TRADESTATION TECHNOLOGIES, INC., and IBFX, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`_______________
`
`Case CBM2015-00181
`Patent 7,676,411 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`I. INTRODUCTION
`On March 21, 2016, IBG LLC, Interactive Brokers LLC, TradeStation
`Group, Inc., TradeStation Securities, Inc., TradeStation Technologies, Inc.,
`and IBFX, INC. (collectively, “Petitioner”) filed a Request for Rehearing
`(Paper 31, “Req. Reh’g”) of our Decision (Paper 26, “Dec.”) denying inter
`partes review of Petitioner’s challenges to U.S. Patent No. 7,676,411 (Ex.
`1001, “the ’411 patent”) based on Silverman1, Gutterman2, Belden3, and
`Togher4 (claims 1–10 and 12–28) and based on Silverman, Gutterman,
`Belden, Togher, and Paal5 (claim 11) (“the Silverman challenges”).6
`Petitioner’s Request alleges that
`The Board erred when it denied instituting review of claims 1–
`28 based on the Silverman combinations (i.e., Grounds 2 and 3)
`because it misapprehended the Petition as relying on Gutterman
`alone to disclose these limitations, Decision at 22, and
`overlooked key arguments in the Petition that the combination of
`Silverman and Gutterman teaches the “moving” limitations, Pet.
`at 41–43.
`Req. Reh’g 2.
`
`II. STANDARD OF REVIEW
`Under 37 C.F.R. § 42.71(c), “[w]hen rehearing a decision on petition,
`a panel will review the decision for an abuse of discretion.” Abuse of
`discretion occurs when a “decision was based on an erroneous conclusion of
`
`
`1 U.S. Pat. No. 5,077,665, iss. Dec. 31, 1991 (Ex. 1003, “Silverman”).
`2 U.S. Pat. No. 5,297,031, iss. Mar. 22, 1994 (Ex. 1004, “Gutterman”).
`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”).
`5 U.S. Pat. No. 5,263,134, iss. Nov. 16, 1993 (Ex. 1018, “Paal”).
`6 Our Decision granted inter partes review with respect to other challenges.
`
`
`
`2
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`law or clearly erroneous factual findings, or . . . a clear error of judgment.”
`PPG Indus. Inc. v. Celanese Polymer Specialties Co., 840 F.2d 1565, 1567
`(Fed. Cir. 1988) (citations omitted). In its request for rehearing, the
`dissatisfied party must identify the place in the record where it previously
`addressed each matter it submits for review. 37 C.F.R. § 42.71(d).
`
`III. ANALYSIS
`Petitioner acknowledges that “[t]he Decision correctly noted that
`footnote 3 [on page 41 of the Petition] states: ‘Gutterman discloses the
`movement of bid/asks along a price axis,’” but contends that we
`misapprehended that footnote as addressing the “moving” limitation. Req.
`Reh’g 3 (citing Dec. 21–22; Pet. 41). Petitioner contends that footnote 3
`does not address the “moving” limitation and, instead, contends that “[t]he
`Petition addresses the ‘moving’ limitations in Section VI(G)(5), which
`explains that the combination of Silverman and Gutterman teaches the
`‘moving’ limitations.” Id. (citing Pet. at 41–43).
`Initially, we note that claims 1 and 26 each require “displaying . . . a
`first indicator representing quantity associated with at least one trade order
`to buy the commodity at the current highest bid price” and “displaying . . . a
`second indicator representing quantity associated with at least one trade
`order to sell the commodity at the current lowest ask price.” The claims
`require displaying the first indicator at a first graphical location along a price
`axis in a bid display region and moving the first indicator relative to the
`price axis to a second graphical location in the bid display region “upon
`receipt of market information comprising a new highest bid price.” The
`claims require displaying the second indicator at a first graphical location
`
`
`
`3
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`along the price axis in an ask display region and moving the second indicator
`relative to the price axis to a second graphical location in the ask display
`region “upon receipt of market information comprising a new lowest ask
`price.” The “moving” limitations referenced by Petitioner are those
`emphasized above.
`When reaching our determination that Petitioner had failed to
`demonstrate that it is more likely than not that the challenged claims are
`unpatentable under 35 U.S.C. § 103 based on the Silverman challenges, we
`considered the entirety of Petitioner’s arguments on pages 41–43 of the
`Petition, which are referenced in this Request for Rehearing. See Dec. 21–
`22. We read the Petition as asserting that “Gutterman discloses the
`movement of bid/asks along a price axis,” which Petitioner acknowledges is
`the statement set forth in the Petition. See id. (citing Pet. 40–41 n.3); Req.
`Reh’g 3. As noted above, Petitioner now clarifies that it does not rely on
`Gutterman as teaching the “moving” limitation. Any misapprehension
`regarding this argument, however, is not sufficient for a modification to our
`Decision. Rather, we read the Petition as advancing that position because it
`was the only assertion of any teaching of the “moving” limitation in the
`Silverman challenges, and the additional discussion in the cited pages of the
`Petition is nothing more than conclusory statements regarding why the
`“moving” limitations would have been obvious.
`Limiting our review to Section VI(G)(5) of the Petition, as Petitioner
`now requests (i.e., without the statement in footnote 3 discussed above), we
`note that the Petition provides only a conclusory assertion that the “moving”
`limitation would have been obvious. See Pet. 42–43. The Request for
`
`
`
`4
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`Rehearing makes this clear, stating that the limitation would have been
`obvious because
`the combination GUI of Silverman and Gutterman would
`always display the best inside price along a price axis. And
`when it receives a new best inside price, the indicators
`associated with the new best inside price would be displayed at
`their appropriate price level(s)—i.e., move along the price axis.
`Req. Reh’g 5. Noticeably lacking from the Petition (and the Request for
`Rehearing’s characterization of the Petition) is any explanation as to why
`“the combination GUI of Silverman and Gutterman” would have a fixed
`price axis where the indicators move, rather than a moving (i.e., dynamic)
`price axis where the indicators move.
`Accordingly, we are not persuaded that we erred in denying institution
`of the Silverman challenges.
`
`IV. ORDER
`For the reasons given, it is
`ORDERED that Petitioner’s Request is denied.
`
`
`
`
`
`
`
`
`5
`
`
`
`CBM2015-00181
`Patent 7,676,411 B2
`
`PETITIONER:
`
`Robert Sokohl
`Lori Gordon
`Richard Bemben
`STERNE, KESSLER, GOLDSTEIN & FOX
`rsokohl-PTAB@skgf.com
`lgordon-ptab@skgf.com
`rbemben-PTAB@skgf.com
`
`
`PATENT OWNER:
`
`Erika H. Arner
`Kevin D. Rodkey
`Joshua L. Goldberg
`Rachel Emsley
`FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, LLP
`erika.arner@finnegan.com
`kevin.rodkey@finngan.com
`joshua.goldberg@finnegan.com
`rachel.emsley@finnegan.com
`
`Steven F. Borsand
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`steve.borsand@tradingtechnologies.com
`
`
`
`6
`
`
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