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`CBM2016-00046 , Paper No. 43
`CBM2016-00047 , Paper No. 42
`CBM2016-00048 , Paper No. 42
`July 20, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CQG, INC., CQG, LLC (f/k/a CQGT, LLC),
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., TRADESTATION SECURITIES, INC., and
`TRADESTATION TECHNOLOGIES, INC.,
`Petitioner,
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`v.
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`CHART TRADING DEVELOPMENT, LLC,
`Patent Owner.
`____________
`
`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`____________
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`Held: June 8, 2017
`____________
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`
`
`BEFORE: Jameson Lee, Kevin Turner, and Kevin Cherry,
`Administrative Patent Judges.
`
`
` The above-entitled matter came on for hearing on Thursday, June
`8, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
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`571-272-7822
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`CBM2016-00046 , Paper No. 43
`CBM2016-00047 , Paper No. 42
`CBM2016-00048 , Paper No. 42
`July 20, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CQG, INC., CQG, LLC (f/k/a CQGT, LLC),
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., TRADESTATION SECURITIES, INC., and
`TRADESTATION TECHNOLOGIES, INC.,
`Petitioner,
`
`v.
`
`CHART TRADING DEVELOPMENT, LLC,
`Patent Owner.
`____________
`
`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`____________
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`Held: June 8, 2017
`____________
`
`
`
`BEFORE: Jameson Lee, Kevin Turner, and Kevin Cherry,
`Administrative Patent Judges.
`
`
` The above-entitled matter came on for hearing on Thursday, June
`8, 2017, commencing at 1:00 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
`
`
`BENJAMIN LIEB, ESQUIRE
`Talus Law Group, LLC
`
`--and--
`
`MATTHEW A. ARGENTI, ESQUIRE
`Wilson Sonsini Goodrich & Rosati
`650 Page Mill Road
`Palo Alto, California 94304-1050
`
`
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`ON BEHALF OF PATENT OWNER:
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`TIMOTHY P. MCANULTY, ESQUIRE
`JAMES BARNEY, ESQUIRE
`KASSANDRA OFFICER, ESQUIRE
`Finnegan, Henderson, Farabow, Garrett & Dunner,
`901 New York Avenue, N.W.
`Washington, D.C. 20001-4413
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE CHERRY: I'm Judge Cherry. This is Judge
`Lee. Judge Turner is remote from our Palo Alto office. This is
`the hearing in CBM2016-46, 47 and 48. CQG versus Chart
`Trading Development.
`Will the parties, please, identify themselves.
`MR. LIEB: Good afternoon, Benjamin Lieb, lead
`counsel for the Petitioners. With me is Matthew Argenti from
`Wilson Sonsini, backup counsel.
`MR. MCANULTY: Thank you, Your Honor. Tim
`McAnulty for Patent Owner. With me are Kassandra Officer and
`James Barney.
`JUDGE CHERRY: Welcome. We'll begin the hearing
`with the Petitioner, as they have the burden of proof. Mr. Lieb,
`whenever you're ready.
`MR. LIEB: Thank you. Your Honor, I have copies of
`my demonstratives if you'd like copies.
`JUDGE CHERRY: Yes, please.
`MR. LIEB: May I approach?
`JUDGE CHERRY: Yes.
`MR. LIEB: Okay. Thank you, Your Honors. Again,
`Benjamin Lieb for Petitioners. I would like to reserve 45 minutes
`for any rebuttal. I understand in the proceeding we have a
`Motion to Exclude and we also have a Contingent Motion to
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`Amend. I'm going to respond on the Contingent Motion to
`Amend on my rebuttal time. With respect to the Motion to
`Exclude, I'm just going to submit that on the papers. I don't have
`any statements to make on that, unless there are questions.
`JUDGE CHERRY: Great. So you'll have 15 minutes
`as your opening and then 45 minutes as your rebuttal?
`MR. LIEB: Correct.
`JUDGE CHERRY: Great.
`MR. LIEB: So these CBM proceedings were instituted
`on three related patents that are -- share a single specification on
`the grounds of patent ineligibility. It's our position that
`Petitioners have proven -- met their burden of proof that each of
`the claims of the three patents are patent ineligible under the
`two-part test in Alice.
`The three specifications do not describe a solution to a
`technical problem. What they describe is a problem that was a
`financial or trader-related problem and did not arise in the realm
`of computer functionality or graphical interface functionality.
`The specification does not describe any specific computer
`program or processing beyond what was already known when the
`applications were filed. It merely describes using well-known
`graphical user interface elements in known ways, conventional
`ways, to perform an abstract idea.
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`
`Essentially the patents are directed to an improvement,
`not to computers as tools, but just uses the computer as a tool. So
`the --
`
`JUDGE CHERRY: Mr. Lieb, I wondered if you could
`clarify in the record, the patent describes that there were, you
`know, mouse-based trading and command line trading, but it
`doesn't really tell us what was involved with that versus the new
`system that they have. Do you have some -- where in the record
`is there evidence about what that mouse-based trading would
`have looked like?
`MR. LIEB: Oh, I see. Yeah, the patent specification
`actually describes that both mouse-based and keyboard-based
`systems exist and that there was a -- that the solution that the
`patent is addressing is to address a user preference for just using a
`mouse, although I'll talk about this later, that doesn't end up being
`in the claims. But both the Patterson and Belden references that
`were submitted in the Petition show both the keyboard and
`mouse-based systems in the prior art. So I think that those would
`be two places to look for examples of what the state of the art was
`at the time that the applications were filed.
`JUDGE CHERRY: Okay. Thank you.
`MR. LIEB: So the first step of Alice asks us to
`determine whether there's an abstract idea and whether the claim
`is directed to the abstract idea or not. I'm sure the panel is well
`aware of that test.
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`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`
`The Petitioners have submitted evidence establishing
`that the abstract idea that underlies these patents, which is
`confirming or modifying an order as a part of the order placement
`process, is a fundamental economic practice. The specification
`acknowledges that this is a fundamental economic practice and
`I'll turn your attention to slide 6 where I've quoted a passage from
`the specification at the bottom of slide 6 that talks about the
`drawbacks associated with using a mouse and how traders have to
`be very careful in placing their trades.
`And I think what's implicit in that statement is that a
`trader needs to -- is going to be confirming or modifying any
`order that a trader places because of the importance of what they
`are doing. It's like the old adage, very old adage, measure twice,
`cut once. You're being very careful in what you're doing.
`The Patent Owner subsequently has admitted in its
`Response Brief in this that there is -- that confirming or
`modifying an order is part of the placement process is a
`fundamental economic practice. That is found -- that quote is
`found on slide 7 of our demonstratives.
`JUDGE CHERRY: The patent talks about that there is
`more -- there is a greater likelihood of error associated with the
`mouse, but it never explains why. What is your understanding of
`why that there would be more errors?
`MR. LIEB: Well, not being a trader, I don't know, but I
`might -- my assumption is that if there -- when you have an entire
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`keyboard of entries versus being able to use a mouse and being
`given a more limited number of selections on a screen, that using
`a mouse would reduce the number of -- potentially reduce an
`error. However -- I'll talk about this a little bit more later -- none
`of these claims require these of a mouse.
`There are some limitations that require a pointing
`device entry, but the thrust of the Patent Owner's arguments has
`been this is some kind of a specific GUI that requires input using
`a pointing device, but the claims don't bear that out, that that
`limitation is just not found in the claims and the Patent Owner's
`expert admitted that during his deposition. So it might be
`something that they wish was in the claims, but it's just not there.
`So turning back to what I was -- where I was, the
`fundamental economic practice is an abstract idea under our law.
`And according to decisions like Ameranth and Enfish, how do we
`determine that a claim is directed to an abstract idea or not and
`those cases basically tell us, especially in the computer context
`that if it's using -- or if it's using an abstract or applying an
`abstract idea to improve the functionality of the computer as a
`tool, then perhaps it's not directed to the abstract idea. But if it's
`merely carrying out the abstract idea and using the computer as a
`tool to do that, then it is, in fact, directed to that abstract idea.
`And I think in this, I think we made it clear in our
`submissions, paper submissions, that these claims, all of the
`claims of the three patents are directed to this abstract idea of
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`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`confirming or modifying an order as part of the order placement
`process.
`Now, the Patent Owner argues that the claims are not
`directed to an abstract idea because the claims are supposedly
`directed to a specific GUI, but this assertion is -- it's not borne out
`by the claim limitations, but it's also not -- the Patent Owner's
`expert admitted in his deposition with respect to all three of these
`patents that they're not directed to any specific GUI. They're
`directed to very general, well-known prior art GUI elements and
`they use those -- or the claims use those elements in ways that
`were well-known at the time.
`So this just shows us that the claims fall into that latter
`category under what Ameranth announces as being the test for
`whether something is directed to using the computer as a tool to
`carry out the abstract idea.
`If you were to turn your attention to slides 8 through 10,
`I won't read them all to you, but this is the actual testimony from
`Patent Owner's expert where I asked him a series of questions
`about all the claims of each of the three patents and they're
`basically -- because I had the same questions with respect to each
`patent, I got the same questions and the same answers.
`So I asked him if there was anything about the claims
`that requires the elements of the graphical user interfaces to be
`configured in a particular way and he said, no, there is not. I
`asked him if the claims of the patents require a particular
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`interface layout and he said there was not. He confirmed that
`there is no requirement. He confirmed that there's no requirement
`that the user interfaces be configurable. He confirmed that none
`of the claims require all of the steps be performed with a pointing
`device or mouse. He confirmed that there was no requirement
`that the first interface required by the claims had to be in a
`particular location on a screen. He confirmed the same thing for
`a second interface and he also confirmed that there's nothing in
`the claims that requires the first interface to be a chart or a graph.
`JUDGE CHERRY: Do you understand the claims to
`require that the first -- the second interface could not -- scratch
`that. Could the -- under the claims could the second interface be
`displayed at the same time as the first interface?
`MR. LIEB: There is no requirement in the claims that
`one disappear, for example, and the other one come up. They
`could be next to each other. They could overlap. And then we
`got into that with the Patent Owner's expert during his deposition
`and basically what was told -- what we were told was that the
`interfaces could be any kind of interface. It could be a drop-down
`menu. It could be a menu that moves up, which I thought was not
`called a drop-down, but he says that's also called a drop-down.
`So anything that moves in from the side, moves up from
`the bottom, moves down from the top, and these are all things
`that were well-known at the time. Like Windows 97, you know,
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`had drop-down menus with items to select and so this was not --
`this is not a new type of graphical user interface.
`So another way to confirm that these claims are directed
`to an abstract idea is to look at other cases. Amdocs case tells us
`to do that. And this case is for all relevant purposes identical to
`the Ameranth case. That case has two menus, one that's
`generated by a selection on the first menu. The second menu
`comes up, and that's exactly what's going on here and you've got
`elements in the Ameranth menus that are like the buttons and the
`fields that are -- or they're similar at least to the buttons and fields
`that are in the claims that are before us.
`So if you want to order an ice tea, the user of that device
`would hit ice tea and then a new menu would come up and ask
`whether you want to put lemon in it. And this is the same kind of
`functionality that we see in these claims. A bidder offer is
`selected on the first screen and another screen comes up or it's
`already up. The claims don't say whether they have to overlap or
`not exist together. And on that second screen you've got an input
`to confirm or modify the order and then you send the order into
`the electronic trading system. It's that simple.
`JUDGE LEE: Is there any new functionality provided
`by the graphical user interface?
`MR. LIEB: That is claimed?
`JUDGE LEE: Yeah.
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`
`MR. LIEB: I don't see any, any new function. It's using
`buttons. It's using fields. It's using adjustment of entries within
`fields, all in the same ways that were well-known at the time.
`There's no -- it's not a new graphical user interface that didn't
`exist before and it's replicating the historic paper analog of using
`a sheet of paper to submit an order and of which, you know, the
`trader at that time would confirm or modify their order as they are
`completing a paper form.
`JUDGE LEE: Well, help me understand how to make
`the distinction between seeing a new functionality for their
`graphical user interface versus seeing the execution of the same
`old functionality, but just with different data and a different
`circumstance, because I'm not sure how to draw a distinction
`between the two.
`MR. LIEB: Well, I think -- forgive me if I
`misunderstood your question, but I think that your question
`actually answers itself. If it's something new, we won't have seen
`it before. It won't exist in the prior art. But in this case, we have
`buttons and fields that are just being used in the way that they've
`always been used. They're not being assembled in a new way to
`accomplish a different result.
`JUDGE LEE: Maybe I can explain it better this way:
`Let's say phones are known. However, this number is a
`brand-new number, never been used by anybody. So if you use
`this phone to call this number, is that a new functionality
`
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`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`provided by the phone because never before has the phone been
`used to call that particular number. So from one perspective,
`someone could say that's a new functionality.
`MR. LIEB: Sure.
`JUDGE LEE: From another perspective it's the same
`phone that's executing the same functionality of calling the
`number. It doesn't matter what that number is. So my question
`comes from that perspective. You know, they have a button here,
`a button there. The button was never created in the way they
`want it, so in that way it was new, but yet it's still on a graphical
`user interface that's known to implement buttons. So my
`difficulty stems from knowing when is that deemed a new
`functionality versus it's the same functionality, but just
`implemented with different data.
`MR. LIEB: Well, I think that the Trading Technologies
`case, which the Patent Owner is relying on, shows us what is
`something new and that was, you know, a graphical user interface
`that had a static price index and it was a new way of graphing
`information that didn't have a historic analog. It was just a -- it
`was basically novel.
`But I try not to, you know, mix 102 and 103 with the
`101 analysis, but it was a new thing that didn't have a historical
`precedent and it wasn't using the elements of a graphical user
`interface in a similar way to what was being used in the past
`because it was, in fact, something that was new.
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`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`
`Here, we've got well-known elements being used in
`their normal way, buttons, fields that are populated with data
`based on a computer calculation and those are very well-known
`and they're not being used in a different way. So to use your
`analogy with the phone, just simply typing in a different number
`is using the phone in the exact same way that it's been used for
`every other phone number even though your pushing the buttons
`in a different sequence, but you're still using it for its intended
`purpose as it has been used historically. You're still using it in
`what would be -- what I think would be called a well-known and
`conventional way.
`Now, if you were using it for some other purpose, the
`phone, maybe that was -- that would be a new functionality.
`JUDGE LEE: I think I understand, but hypothetically
`what if to avoid accidental inputs, the claim says all of our
`buttons have to be in the bottom right corner so there's no
`accidental touching of anything. You've got to deliberately move
`to the bottom right corner every time you've got to click
`something. Is that a new functionality?
`MR. LIEB: If the prior art did not show that there was
`some historic analog to that graphical user interface design, in
`other words, perhaps there was a paper form that used entries in
`the bottom right corner because for some reason that's a --
`JUDGE LEE: Well, say the art never says puts a button
`in the bottom right corner, but it puts it somewhere on the screen.
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`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`So is that a novel functionality to say our button has to be at the
`bottom right corner?
`MR. LIEB: I don't know if that would be novel, but it
`would -- if it's being done -- if that arrangement is being
`performed to solve a problem that exists in a graphical user
`interface environment, then I would say that that would be --
`JUDGE LEE: So, okay, let's assume that's a new
`functionality. You're saying they don't have anything that's
`comparable to that with screen manipulation, something
`comparable to, oh, I've got to have this button in the bottom right
`corner.
`
`MR. LIEB: There is no physical location of any of the
`elements that is called out in any of these claims. So there's no
`requirement of what type of interface it is. It can be any kind of
`interface. There's no requirement as to whether -- you know,
`where any of the elements are located, what size they are,
`whether they're at the top, bottom, right, left. There's nothing
`called out like that.
`It's just an interface with a button, a second interface
`with two buttons and all of those things are being used in the way
`that they always have been used, just like your telephone
`example. So for that reason I don't -- there's no -- it seems that
`the claims are directed to the process, which is the abstract idea
`really, and it's just been carried out on a computer using the tools
`that are available to us in a graphical user interface at the time the
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`patent is filed and there's nothing inventive about what they've
`done.
`
`If I can draw your attention quickly to slide 12 of our
`demonstratives where the Patent Owner's expert talked about or
`admitted that all the features of the claims were well-known as of
`the priority date. So collecting and gathering and displaying
`information for a trader was well-known using pointing devices
`or some other type of pointer to select elements on a GUI was
`known.
`
`Command line interfaces were known, using buttons to
`select a command was known, using fields to input data and
`fields with pre-populated entries, that was known, use of buttons
`or sliders to adjust values in a field was known. Use of
`drop-down menus and child windows -- or this is the -- actually
`this is important. So using drop-down menus and child windows,
`so a child window is a window that basically would pop up or
`appear or exist next to another interface.
`The expert admitted -- I'll invite you to actually look at
`his testimony, which we've cited here, and this is cited in our
`Reply Brief as well as here on the demonstrative. The expert said
`that putting these GUI elements into these windows or menus or
`boxes was simply a matter of arranging things according to what
`the user preference was for those features.
`In other words, if you want to do X, we can just put a
`button here to do X or you want a field that shows Y, we can put
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`a field in here that shows Y. There is -- what he's saying is there's
`nothing inventive about having a second interface that opens up
`with some buttons and fields in it. That is just using a computer
`in its normal way as a tool.
`He also admitted on -- and I point out on slides 13 that
`the use of -- that all of the claims can be performed with generic
`computer components. So everything can be carried out
`generically. So that just confirms that there's no inventive aspect
`of the claimed inventions that relates to computer technology.
`So if there aren't any other questions, I will reserve the
`rest of my time.
`JUDGE CHERRY: Thank you.
`Good afternoon, Mr. McAnulty. How much time would
`you like to -- do you want to reserve any time?
`MR. MCANULTY: Yes, Your Honor. 15 minutes,
`
`please.
`
`JUDGE CHERRY: Sure.
`MR. MCANULTY: And I do have hard copies of our
`demonstratives as well, if you'd like copies. May I approach?
`JUDGE CHERRY: Yes. Mr. Lieb used a little more
`time, so if you -- you know, we can be flexible about the times.
`MR. MCANULTY: Okay. Thank you.
`JUDGE CHERRY: All right. Whenever you're ready
`you may begin.
`MR. MCANULTY: Thank you, Your Honor.
`
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`
`The claims that we're talking about today are directed to
`a specific GUI, a specific interface for electronic trading, and
`Petitioners' arguments against those claims with respect to patent
`eligibility come down to two things, one, that there's no specific
`layout or blueprint required and, two, that they're made up of just
`conventional GUI elements, neither of which are in and of
`themselves enough to show patent ineligibility.
`We have several cases that guide --
`JUDGE CHERRY: Oh, excuse me, Mr. McAnulty,
`repeatedly in your brief you talk about that the claims are --
`include a -- that they include an aspect that's configurable. What
`about the claims that's configurable?
`MR. MCANULTY: The claims are directed to a GUI
`that is capable of being configured as well as --
`JUDGE CHERRY: Where is that in the claim?
`MR. MCANULTY: The fact that it is configurable is
`not specifically recited, but what the GUI allows is an interface
`that can be configurable, the same that the claims also enable a
`trader to be able to use a pointer or a mouse to effect the trades as
`opposed to what was already known and what these patents are
`directed to overcome.
`JUDGE CHERRY: Do the claims, and particularly the
`independent claims, do they recite amounts?
`MR. MCANULTY: The independent claims do not.
`There are dependent claims that do and the amended claims in
`
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
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`some ways make that more explicit, but the claims themselves
`enable the ability to trade via the mouse-based trading, which was
`what the patents were directed to overcoming with respect to the
`prior art.
`
`JUDGE CHERRY: But you admit that the claims are
`broader than that.
`MR. MCANULTY: You're right, the claims do not
`require an input by a pointer in and of themselves, but they enable
`the ability to do so.
`JUDGE CHERRY: I guess what in the claims -- and
`this is -- I kind of asked this question of Mr. Lieb, but I guess it's
`more appropriate to ask it of you. What in the claims
`accomplishes the goal which the patent says of making
`mouse-based trading more, I guess, quicker?
`MR. MCANULTY: It's the two interfaces. In the prior
`art there were other ways to do electronic trading. There were
`ways to view the market to see the data and traders would then go
`to either another system, another screen or another interface and
`either enter that by hand, through a dialog window or through a
`keyboard or keystroke system.
`JUDGE CHERRY: Is that in your specification?
`MR. MCANULTY: Those specific features described
`like that are not. In a broad sense the patent does describe
`shortcomings with other systems that require dual inputs, not just
`a single input like a mouse, but required using a graphical menu
`
`
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`that would show the market and then going to another system and
`either entering it in a line command or doing it by keystrokes in a
`keyboard.
`JUDGE CHERRY: I mean, I guess when I read the
`background of the invention, it seemed to be at a much higher
`level than that. It didn't even say that there were two systems,
`correct? It just said there's keyboard-based trading and there's
`mouse-based trading and keyboard-based trading is more prone to
`mistakes. Is that a fair characterization of the background of the
`invention?
`MR. MCANULTY: That is fair. It doesn't get into the
`specifics of how those other systems work with the different
`systems. I think some of that is implicit in the background as to
`how those other systems would work. If you had a particular
`interface where you were using a mouse or something to monitor
`certain commodities or instruments and then going someplace
`else to use a keyboard, that would generally tell at least two
`systems two inputs.
`JUDGE CHERRY: Is there evidence in the record that
`either the Petitioner has identified or you've identified that would
`illuminate what the shortcomings were?
`MR. MCANULTY: Generally, and I think this is in the
`background of the patents, it describes the overall goal of traders
`and that's speed and accuracy and having a system, a tool, to
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`enable a trader to have fast and accurate reaction to changing
`market conditions.
`JUDGE CHERRY: So the solution, though, that's
`claimed is just the two interfaces.
`MR. MCANULTY: It's two interfaces that have
`specific features in each of those interfaces that together are a
`system for placing those types of trades.
`JUDGE CHERRY: But what about -- well, what in the
`claims actually reflects this solution, what is the -- what would
`you say is the improvement that you interface those, I mean, two
`separate interfaces?
`MR. MCANULTY: It's the dual interfaces with the
`specific functions in each of those interfaces to enable a
`mouse-based type trading to submit orders to the electronic
`market.
`
`JUDGE CHERRY: And what does it mean that they're
`separate interfaces?
`MR. MCANULTY: They're in response to a selection
`by the trader on the first interface. A second interface is
`displayed providing the different features in that interface for
`confirming --
`JUDGE CHERRY: Do the claims require that the
`second interface not be displayed when a first -- without
`activating the first interface?
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`Case CBM2016-00046 (Patent No. 7,890,416 B2)
`Case CBM2016-00047 (Patent No. 8,041,626 B2)
`Case CBM2016-00048 (Patent No. 8,060,435 B2)
`
`
`MR. MCANULTY: The claims say that in response to
`the input there is a second interface that's displayed.
`JUDGE CHERRY: But I got the impression that your
`expert said that that didn't require that they not be displayed
`simultaneously.
`MR. MCANULTY: I think what is in the record is that
`in response to monitoring in the first interface the market, the
`bids and the offers that would be going on for a particular
`instrument. Once a trader clicks on one of those, then the second
`interface with the remaining elements of that interface would then
`be displayed, that could be displayed. It doesn't have to be
`overlapped. It doesn't have to -- the first interface doesn't have to
`go away, but there is a new interface, the second one that is
`presented to the trader.
`JUDGE CHERRY: But I guess how is that different
`than the Friesen reference where you have the chart with the
`chips and you click on the chip and then it brings up the second --
`the popup window with the additional detail?
`MR. MCANULTY: There's differences, at least with
`respect to the art in what's being displayed in the first instance, in
`the first interface, and then what's being displayed and provided
`to the user, the trader, in the second interface.
`JUDGE CHERRY: Well, what is being displayed in the
`first interface?
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`Case CBM2016-00046
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