Case: 17-2054
`
`Document: 131
`
`Page: 1
`
`Filed: 02/13/2019
`
`NOTE: This disposition is nonprecedential.
`
`@Hniteh étatw @nurt of gppealg
`
`£01?th jfeheral QEirtuit
`
`IBG LLC, INTERACTIVE BROKERS, LLC,
`Appellants
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Cross-Appellant
`
`UNITED STATES,
`Intervenor
`
`2017-1732, 2017-1766, 2017-1769
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. CBM2015-
`00161, CBM2016-00035.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`'
`Appellants
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Cross-Appellant
`
`
`
`Document: 131
`
`Page: 1
`
`Filed: 02/13/2019
`
`NOTE: This disposition is nonprecedential.
`
`@Hniteh étatw @nurt of gppealg
`
`£01?th jfeheral QEirtuit
`
`IBG LLC, INTERACTIVE BROKERS, LLC,
`Appellants
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Cross-Appellant
`
`UNITED STATES,
`Intervenor
`
`2017-1732, 2017-1766, 2017-1769
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in Nos. CBM2015-
`00161, CBM2016-00035.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`'
`Appellants
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Cross-Appellant
`
`
`
`Casez17-2054
`
`Document2131
`
`Page:2
`
`Filed: 02/13/2019
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`UNITED STATES,
`Intervenor
`
`2017-2052, 2017-2053
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2015-
`00182.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Appellant
`
`V.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`Appellees
`
`UNITED STATES,
`Intervenor
`
`2017-2054
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2015-
`00181.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`
`
`
`Case: 17-2054
`
`Document: 131
`
`Page: 3
`
`Filed: 02/13/2019
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`3
`
`Appellant
`
`V.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`Appellees
`
`UNITED STATES,
`Intervenor
`
`2017-2565
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2016-
`00031.
`
`Decided: February 13, 2019
`
`BYRON LEROY PICKARD, Sterne Kessler Goldstein &
`Fox, PLLC, Washington, DC, argued for appellants in
`2017-1732, 2017-2052 and for appellees in 2017-2054,
`2017-2565. Also represented by RICHARD M. BEMBEN,
`ROBERT EVAN SOKOHL, JON WRIGHT; MICHAEL T. ROSATO,
`Wilson, Sonsini, Goodrich & Rosati, PC, Seattle, WA.
`
`' MICHAEL DAVID GANNON, Baker & Hostetler LLP, Chi-
`cago, IL, argued for cross-appellant in 2017-1732, 2017-
`2052 and appellant in 2017-2054, 2017-2565. Also repre-
`sented by LEIF R. SIGMOND, JR., JENNIFER KURCZ; ALAINA
`J. LAKAWICZ, Philadelphia, PA; COLE BRADLEY RICHTER,
`McDonnell, Boehnen, Hulbert & Berghoff, LLP, Chicago,
`IL; STEVEN BORSAND, JAY QUENTIN KNOBLOCH, Trading
`Technologies International, Inc., Chicago, IL.
`
`
`
`Casez17-2054
`
`Document2131
`
`Page:4
`
`Filed: 02/13/2019
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`KATHERINE TWOMEY ALLEN, Appellate Staff, Civil Divi-
`sion, United States Department Of Justice, Washington,
`DC, argued for intervenor. Also represented by MARK R.
`FREEMAN, SCOTT R. MCINTOSH, JOSEPH H. HUNT; THOMAS
`W. KRAUSE, JOSEPH MATAL, FARHEENA YASMEEN RASHEED,
`Office of the Solicitor, United States Patent and Trade-
`mark Office, Alexandria, VA.
`
`Before LOURIE, MOORE, and REYNA, Circuit Judges.
`
`PER CURIAM.
`
`Trading Technologies International, Inc., (“TT”) is the
`owner of US. Patent Nos. 6,766,304, 6,772,132, 7,676,411,
`and 7,813,996. All four patents share a specification and
`describe a graphical user interface (“GUI”) for a trading
`system that “display[s] the market depth of a commodity
`traded in a market, including a dynamic display for a plu-
`rality of bids and for a plurality of asks in the market for
`the commodity and a static display of prices corresponding
`to the plurality of bids and asks.” ’132 patent at 3:11—16.1
`IBG LLC and Interactive Brokers LLC (collectively, “Peti-
`tioners”) petitioned for covered business method (“CBM”)
`review Of each patent.2
`
`The Board instituted CBM review of each patent and
`.issued separate final written decisions. In the proceedings
`involving the ’304 and ’132 patents, the Board upheld the
`patent eligibility of the claims based on our reasoning in
`Trading Technologies International, Inc. v. CQG, Inc., 675
`
`Because all four patents share a specification, we
`1
`cite only to the ’132 patent throughout.
`patent;
`’304
`2
`CBM2015-00161
`involved
`the
`CBM2015-00182 involved the ’132 patent; CBM2015-
`00181 involved the ’411 patent; and CBM2016-00031 in-
`volved the ’996 patent.
`
`
`
`Case217-2054
`
`Documentz131
`
`Page:5
`
`Filed: 02/13/2019
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`5
`
`F. App’x 1001 (Fed. Cir. 2017). In the proceedings involv-
`ing the ’411 and ’996 patents, the Board held that the
`claims were ineligible.
`In the proceedings involving the
`’132 and ’411 patents, the Board also held that all claims
`except claims 29, 39, and 49 of the ’132 patent would have
`been obvious.
`
`TT appeals, among other issues, the Board’s determi-
`nations regarding whether the patents are directed to a
`technological invention. Petitioners appeal the Board’s de-
`terminations that the claims of the ’304 and ’132 patents
`are patent eligible and that claims 29, 89, and 49 of the ’132
`patent would not have been obvious. We have jurisdiction
`under 28 U.S.C. § 1295(a)(4)(A). We vacate the decision of
`the Board in each case because the patents at issue are for
`technological inventions and thus were not properly sub-
`ject to CBM review.
`
`DISCUSSION
`
`The proceedings on appeal stem from the Transitional
`Program for Covered Business Method Patents (“CBM re-
`view”), which expires next year. Leahy-Smith Am. Invents
`Act, Pub. L. 112-29, § 18(a)‘ (“AIA”). Pursuant to the stat-
`ute, the Board may only institute CBM review for a patent
`that is a CBM patent. Id. § 18(a)(1)(E). A CBM 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 pa-
`tents for technological inventions.” Id. § 18(d)(1) (emphasis
`added). Neither party disputes here that the patents at
`issue meet the first part of the test. The only issue is
`whether the patents are for technological inventions. Pur-
`suant to its authority under § 18(d)(2), the Patent and
`Trademark Office
`(“PTO”)
`promulgated
`37 C.F.R.
`§ 42.301Cb), which requires the Board to consider the fol-
`lowing on a case-by-case basis in determining whether a
`
`
`
`Case: 17—2054
`
`Document: 131
`
`Page: 6
`
`Filed: 02/13/2019
`
`6
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`invention: “whether the
`is for a technological
`patent
`claimed subject matter as a whole recites a technological
`feature that is novel and unobvious over the prior art” and
`whether it “solves a technical problem using a technical so-
`lution.” We review the Board’s reasoning “under the arbi-
`trary
`and
`capricious
`standard
`and
`its
`factual
`determinations under the substantial evidence standard.”
`
`SightSound Techs, LLC 1). Apple Inc., 809 F.3d 1307, 1315
`(Fed. Cir. 2015).
`
`We previously upheld the eligibility under § 101 of the
`’132 and ’304 patents in CQG. 675 F. App’x at 1006. In the
`CBM review proceedings with regard to those patents, the
`Board adopted as persuasive that reasoning and conclu-
`sion. The discussion of those patents in the context of eli-
`gibility is
`instructive to the technological
`invention
`question. In CQG, the district court held that the claims
`were not directed to an abstract idea, stating:
`
`the claims are directed to solving a problem that
`existed with prior art GUIs, namely, that the best
`bid and best ask prices would change based on up-
`dates received from the market. There was a risk
`with the prior art GUIs that a trader would miss
`her intended price as a result of prices changing
`from under her pointer at the time she clicked on
`the price cell on the GUI. The patents-in-suit pro-
`vide a system and method whereby traders may .
`place orders at a particular, identified price level,
`not necessarily the highest bid or the lowest ask
`price because the invention keeps the prices static
`in position, and allows the quantities at each price
`to change.
`
`Trading Techs. Int’l, Inc. v. CQG, 2015 WL 774655, at *4
`(ND. 111. 2015). The district court determined that “[t]his
`issue did not arise in the open outcry systems, i.e. the pre-
`electronic trading analog of the ’304 and ’132 patents’
`
`
`
`Case217-2054
`
`Document:131
`
`Page:7
`
`Filed: 02/13/2019
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`7
`
`claims.” Id. We agreed “for all of the reasons articulated
`by the district court.” CQG, 675 F. App’x at 1004. We con-
`cluded that “the claimed subject matter is directed to a spe-
`cific improvement to the way computers operate, for the
`claimed [GUI] method imparts a specific functionality to a
`trading system directed to a specific implementation of a
`solution to a problem in the software arts.” Id. at 1006 (in-
`ternal citations and quotation marks omitted).
`
`This characterization is consistent with the description
`of the invention in the specification. The specification
`states that markets with a high volume of trading result in
`“rapid changes in the price and quantity fields within the
`market grid” on a trading screen, which can cause a trader
`to miss his intended price.
`’132 patent at 2:51—60. The
`technical problem with prior GUIs in which the inside mar-
`ket remains stationary, like the one in Figure 2 of the ’132
`patent, is most clearly laid out in US. Patent App. Ser. No.
`09/589,751, which is incorporated by reference in the ’132
`patent and issued as US. Patent No. 6,938,011:
`
`[A] trader might intend to click on a particular
`price but, between the time he decides to do so and
`the time he actually clicks (which may be only hun-
`dredths of a second), the price may change. He may
`not be able to stop the downward motion of his fin-
`ger and the order would be sent to market at an
`incorrect or undesired price.
`
`'
`
`’011 patent at 9:35—41. The claimed invention in the pa-
`tents at issue solves this problem “by displaying market
`depth on a vertical or horizontal plane, which fluctuates
`logically up or down, left or right across the plane as the
`market fluctuates.” ’132 patent at 6:65—7 :2.
`
`In the CBM proceedings involving the ’132 and ’304 pa-
`tents, the Board agreed with CQG and found the claims of
`both patents eligible. At the same time, the Board held
`that the patents are not for technological inventions.
`If
`
`
`
`Casez17-2054
`
`Document2131
`
`Page:8
`
`Filed: 02/13/2019
`
`8
`
`IBG LLC V. TRADING TECHNOLOGIES INT'L
`
`“the claimed subject matter is directed to a specific im-
`provement to the way computers operate,” as we held in
`CQG, 675 F. App’x at 1006, the patents are also for a “tech-
`nological invention” under any reasonable meaning of that
`term. We conclude that the Board’s reasoning with regard
`to the ’132 and ’304 patents is internally inconsistent and
`therefore arbitrary and capricious. And because we see no
`meaningful difference between the claimed subject matter
`of the ’132 and ’304 patents and that of the ’411 and ’996
`patents for the purposes of the technological invention
`question, the same conclusion applies in those cases as
`well.
`
`CONCLUSION
`
`Based on our decision in CQG and the Board’s adoption
`thereof, the Board’s reasoning in determining that the ’132,
`-’304, ’411, and ’996 patents are eligible for CBM review was
`arbitrary and capricious. We hold that these patents are
`“for technological inventions” under AIA, § 18(d)(1) and are
`therefore not subject to CBM review. Because the Board
`may only institute CBM review for CBM patents, we va-
`cate.
`
`VACATED
`
`COSTS
`
`No costs.
`
`
`
`Case: 17-2054
`
`Document 132
`
`Page: 1
`
`Filed: 02/13/2019
`
`@Hm'teh gamma: (£01m of gppeals
`
`tor the jfeberal (flitmu't
`
`IBG LLC, INTERACTIVE BROKERS, LLC,
`
`Appellants
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`4
`
`INC.,
`
`Cross—Appellant
`
`UNITED STATES,
`Intervenor
`
`2017- 1732, 2017- 1766., 2017- 1769,
`
`Appeals from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2015-
`00 161, CBM2016-00035
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`Appellants
`
`‘
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`INC.,
`
`Cross-Appellant
`
`
`
`Case: 17-2054
`
`Document: 132
`
`Page: 2
`
`Filed: 02/13/2019
`
`UNITED STATES,
`Intervenor
`
`2017-2052, 2017-2053
`
`from the United States Patent and
`Appeals
`Trademark Office, Patent Trial and Appeal Board in No.
`CBM2015- 00182.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`Appellant
`
`V.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`Appellees
`
`UNITED STATES,
`Intervenor
`
`2017-2054
`
`from the United States Patent and
`Appeal
`Trademark Office, Patent Trial and Appeal Board in No.
`CBM2015- 00181.
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`
`
`
`Case: 17-2054
`
`Document: 132
`
`Page: 3
`
`Filed: 02/13/2019
`
`Appellant
`
`V.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`Appellees
`
`UNITED STATES,
`Intervenor
`
`2017-2565
`
`and
`from the United States Patent
`Appeal
`Trademark Office, Patent Trial and Appeal Board in No.
`CBM2016- 00031.
`
`JUDGMENT
`
`THIS CAUSE having been considered, it is
`
`ORDERED AND ADJUDGED:
`
`VACATED
`
`ENTERED BY ORDER OF THE COURT
`
`February 13, 2019
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`
`Clerk of Court
`
`
`
`Case217—2054
`
`Document:141_
`
`Pagez1
`
`Filed: 05/07/2019
`
`33111121! étateg (Enurt of gppealg
`
`tor the erheral (fllirmit
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`
`INC.,
`
`Appellant
`
`V.
`
`IBG LLC, INTERACTIVE BROKERS LLC,
`
`Appellees
`
`UNITED STATES,
`Intervenor
`
`2017-2054
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. CBM2015-
`00181.
`
`MANDATE
`
`In accordance with the judgment of this Court, entered
`February 13, 2019, and pursuant to Rule 41 of the Federal
`Rules of Appellate Procedure,
`the formal mandate is
`hereby issued.
`
`'May 7, 2019
`
`FOR THE COURT
`
`/s/ Peter R. Marksteiner
`Peter R. Marksteiner
`Clerk of Court
`
`
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