`
`Trials@uspto.gov Paper 43
`571-272-7822
` Entered: September 1, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`CQG, INC. and CQG, LLC (f/k/a CQGT, LLC),
`Petitioner,
`
`v.
`
`CHART TRADING DEVELOPMENT, LLC,
`Patent Owner.
`____________
`
`Case CBM2016-00048
`Patent 8,060,435 B2
`____________
`
`
`
`Before JAMESON LEE, KEVIN F. TURNER, and
`KEVIN W. CHERRY, Administrative Patent Judges.
`
`CHERRY, 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
`
`A. Background
`CQG, Inc. and CQG, LLC (collectively, “Petitioner”) filed a Petition
`(Paper 5, “Pet.”) requesting review under the transitional program for
`covered business method patents of the AIA1 of claims 1–31 (“the
`challenged claims”) of the U.S. Patent No. 8,060,435 B2 (Ex. 1001, “the
`’435 patent”). Chart Trading Development LLC (“Patent Owner”) filed a
`Preliminary Response. Paper 10 (“Prelim. Resp.”). Pursuant to 35 U.S.C.
`§ 324, in our Decision to Institute, we instituted this proceeding as to claims
`1–31 on the asserted ground that the challenged claims are directed to non-
`statutory subject matter, under 35 U.S.C. § 101. Paper 12 (“Dec.”).
`After the Decision to Institute, Patent Owner filed a Patent Owner
`Response (Paper 20, “PO Resp.”), and Petitioner filed a Reply to the Patent
`Owner Response (Paper 26, “Pet. Reply”). Patent Owner also filed a
`Contingent Motion to Amend (Paper 21, “Mot. Amend”), Petitioner filed an
`Opposition to the Motion to Amend (Paper 27, “Opp. Mot. Amend”), and
`Patent Owner filed a Reply in Support of its Motion to Amend (Paper 30,
`“Reply Mot. Amend”). Petitioner filed a Motion to Exclude (Paper 32,
`“Mot. Exclude”), Patent Owner filed an opposition to the Motion to Exclude
`(Paper 37, “Opp. Exclude”), and Petitioner filed a reply in support of its
`Motion to Exclude (Paper 38, “Reply Mot. Exclude”). An oral hearing was
`held on June 8, 2017. Paper 42 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6(b). This Decision is a Final
`Written Decision under 35 U.S.C. § 328(a) as to the patentability of the
`
`1 Leahy-Smith America Invents Act, Pub. L. No. 112-29, 125 Stat. 284, 329
`(2011) (“AIA”).
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`challenged claims. Based on the complete record, we determine Petitioner
`has demonstrated, by a preponderance of the evidence, that claims 1–31 are
`unpatentable, we deny Patent Owner’s Motion to Amend, and we deny
`Petitioner’s Motion to Exclude.
`B. Related Matters
`The ’435 patent is the subject of several related U.S. district court
`proceedings: Chart Trading Development, LLC v. CQG, Inc., No. 6:15-cv-
`01133-JRG-JDL (E.D. Tex.); Chart Trading Development, LLC v.
`Interactive Brokers, LLC, No. 6:15-cv-01135-JDL (E.D. Tex.); and Chart
`Trading Development, LLC v. TradeStation Group, Inc., No. 6:15-cv-01136-
`JDL (E.D. Tex.). Pet. 7–8; Paper 7, 2. A number of patents are related to
`the ’435 patent and some of the related patents are the subject of petitions
`for covered business method patent review. Paper 7, 2.
`C. The Asserted Ground
`We instituted this proceeding only on Petitioner’s ground challenging
`claims 1–31 as patent ineligible under 35 U.S.C. § 101. Dec. 32.
`D. The ’435 Patent
`The ’435 patent is titled “Systems and Methods for Providing a
`Trading Interface.” Ex. 1001, at [54]. According to the ’435 patent, at the
`time of the invention, electronic trading was becoming more popular and
`there was a need for new systems and methods to enter trade commands in a
`quick, efficient, and accurate manner. Id. at 1:20–23. The ’435 patent
`contends that “in one method of electronic trading, bids and offers are
`submitted by traders to a trading system, those bids and offers are then
`displayed by the trading system to other traders, and the other traders may
`then respond to the bids and offers by submitting sell (or hit) or buy (or lift
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`or take) commands to the system.” Id. at 1:23–28. According to the ’435
`patent, many implementations of electronic trading, while generally
`accurate, are slow because the traders are forced to use both a keyboard and
`a mouse to trade. Id. at 1:29–32. The ’435 patent also explains that using a
`keyboard to execute a trade is faster than with a mouse. Id. at 1:38–42. Yet,
`the ’435 patent explains that traders, at the time of the invention, still
`continued to use a mouse because “it is considered easy to use, and thus
`traders feel that they are less likely to make unwarranted trading mistakes
`with a mouse” and many professional traders “prefer to forgo speed and
`efficiency for peace of mind.” Id. at 1:43–49.
`The ’435 patent contends that traders using mouse-based trading
`interfaces are at a disadvantage when competing with full-time keyboard
`traders because of the time it takes to “physically move a mouse pointer
`from an indicator for the desired instrument, [which] is at some given point
`on a trading screen, to some other point on the screen where bidding/offering
`and bidding/selling commands can be entered.” Id. at 1:50–60. Thus, the
`’435 patent states that it offers a solution to this problem describing a system
`and method where the trader can use various trading interfaces to initiate
`trading commands, configure various display features and default command
`settings, and control a level of command entry verification that is provided
`to protect against inadvertent entry of incorrect trading commands. Id. at
`2:2–7.
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`Figure 1 of the ’435 patent is reproduced below:
`
`
`Figure 1 shows a market cell 100 or main trading window that may be
`used to display one or more bid and/or one or more offer 101 for an item to
`be traded. Id. at 3:21–24. Bid and offer 101 indicates price 102 that a buyer
`is willing to pay for selected item 103 at given size 106 (i.e., a number of the
`item) and price 104 that a seller is willing to accept for selected item 103 at
`given size 108. Id. at 3:24–28. In order to bid for, offer to sell, buy, and/or
`sell an item through market cell 100, a trader may submit a trading
`command indicating the action to be taken using, for example, a command-
`line interface or using a graphical interface. Id. at 3:42–48. “A trader may
`also indicate a desire to bid, offer, buy, and/or sell an item by clicking on
`different portions of a bid and offer 101 for that item in market cell 100.”
`Id. at 3:56–58. In particular, these features allow the user to click on a bid
`price, offer price, bid size, or offer size in a market cell to indicate a desire to
`submit a bid or offer or to sell or buy an item, respectively. Id. at 3:58–64.
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`“[A]fter clicking on a component [(i.e., a field)] of a bid and offer 101
`in a market cell 100, an entry verification feature of the present invention
`may display a graphical interface to a trader to allow the trader to alter
`and/or confirm the command being submitted.” Id. at 5:12–16. Specifically,
`the entry verification feature displays a dialog window 200 (Fig. 2). Id. at
`5:21–27, 5:35–38, 6:66–7:2.
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`Figure 2 of the ’435 patent is reproduced below:
`
`
`Figure 2 illustrates one embodiment of a graphical user interface for
`submitting trading commands. Id. at 4:10–11. As shown, the graphical user
`interface comprises dialog window 200 with various buttons and entry fields
`202–242. Id. at 4:11–13. Using these buttons and entry fields, a trader may
`submit a bid command, an offer command, or a sell command for an item
`corresponding to market cell 100. Id. at 4:13–16. Dialog window 200 also
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`provides numeric keypad 202, buy button 204, sell button 210, bid button
`212, offer button 214, cancel bid button 216, cancel offers button 218,
`cancel all button 220, cancel all for instruments button 222, price entry field
`224, price up and down buttons 226, bid price up and down buttons 228,
`offer price up and down buttons 234, size entry field 230, size up and down
`buttons 232, and preference field 236. Id. at 4:26–56.
`E. Illustrative Claim
`The ’435 patent has three independent claims—claims 1, 19, and 31.
`Claims 1 is a method claim and claims 19 and 31 are apparatus claims.
`Claim 1 of the ’435 patent is illustrative of the challenged claims and is
`reproduced below:
`1. A method, comprising:
`displaying, by a processor of a computing device, a first
`interface that comprises a first variable associated with
`trading an item, in which the first variable comprises a
`price of the item;
`displaying, by the processor, data in a second interface in
`response to a selection of the first variable at the first
`interface, in which the second interface comprises:
`a price field, in which a price displayed in the price field is
`adjustable;
`a size field, in which a size displayed in the size field is
`adjustable, and in which the price and the size are
`associated with trading the item;
`a first button, in which the first button, when selected causes a
`trading command to be submitted;
`a size up button and a size down button, in which the size up
`button when selected increases the size displayed in the
`size field and in which the size down button when
`selected decreases the size displayed in the size field;
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`a price up button and a price down button, in which the price up
`button when selected increases the price displayed in the
`price field and in which the price down button when
`selected decreases the price displayed in the price field;
`and
`one or more numeric buttons;
`receiving a selection of the first button; and
`submitting, by the processor, the trading command for
`execution in response to receiving the selection.
`Ex. 1001, 12:10–38.
`
`II. ANALYSIS
`A. Requirements for Covered Business Method Patent Review
`In the Decision to Institute, at 8–17, we determined that the ’435
`patent is a covered business method patent and meets the standing
`requirement for covered business method patent review. In its Patent Owner
`Response, Patent Owner does not challenge this determination. Thus, we
`are presented with no reason to change our original determination, and adopt
`our determination and our reasoning for purposes of this final written
`decision.
`B. Claim Construction
`In a covered business method patent review, the Board interprets
`claim terms in an unexpired patent according to the broadest reasonable
`construction in light of the specification of the patent in which they appear.
`37 C.F.R. § 42.300(b); Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d
`1306, 1328 (Fed. Cir. 2015) (affirming use of broadest reasonable
`construction standard in a covered business method patent review); see
`Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2142–46 (2016)
`(upholding related rule in inter partes review). Under that standard, and
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`absent any special definitions, we give claim terms their ordinary and
`customary meaning, as they would be understood by one of ordinary skill in
`the art at the time of the invention. In re Translogic Tech., Inc., 504 F.3d
`1249, 1257 (Fed. Cir. 2007). Any special definitions for claim terms must
`be set forth with reasonable clarity, deliberateness, and precision. In re
`Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
`In our Decision to Institute, we determined we did not need to
`construe any claim terms for the purposes of our decision. Vivid Techs., Inc.
`v. Am. Sci. & Eng’g, Inc., 200 F.3d 795, 803 (Fed. Cir. 1999).
`In its Patent Owner Response, Patent Owner seeks construction of the
`term “second interface” and disputes Petitioner’s proposed construction of
`“electronic trade system.” Petitioner has withdrawn its claim construction
`for “electronic trade system” that Patent Owner disputes. Pet. Reply 2.
`Thus, we do not discern a need to construe that term. As for “second
`interface,” we construe that term below.
`“second interface” (all claims)
`Patent Owner argues that the term “second interface,” which is found
`in all of the independent claims, should be construed as “a visual-based
`environment that enables the exchange of input and output between a user
`and a computer.” PO Resp. 13. Patent Owner bases its construction on a set
`of dictionary definitions for the terms “interface,” “graphical user interface,”
`and “interactive.” See Ex. 2012 (“interface”); Ex. 2013 (“interactive”);
`Ex. 2014 (“graphical user interface”); Ex. 2021 (“interactive”). Petitioner
`contends that Patent Owner is improperly importing limitations into this
`term. Pet. Reply 1–2. Petitioner argues that the term should be construed as
`a “graphical interface.” Id. at 2. We agree with Petitioner that Patent Owner
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`seeks to improperly limit the term “second interface.” First, only one of the
`terms Patent Owner relies upon for its dictionary definitions is actually
`recited in the claims. The terms “graphical user interface” and “interactive”
`are absent from the claims. Moreover, the term “graphical user interface” is
`not used in the specification. Thus, we are reluctant to import the general
`meaning of these terms into the claims. For example, with respect to
`“interactive,” there is nothing in the claims that requires the “second
`interface” be involved in the “exchange of input and output.” Although the
`claims recite the second interface receiving input from the user, there is no
`discussion in the independent claims of displaying outputs from the trading
`system or “exchanging information” from the computer to the user. To the
`extent other claims explicitly recite exchanging information, we do not
`believe it is necessary to incorporate that limitation into this term. See
`Apple, Inc. v. Ameranth Inc., 842 F.3d 1229, 1237 (Fed. Cir. 2016)
`(“Construing a claim term to include features of that term already recited in
`the claims would make those expressly recited features redundant.”).
`In addition, from the definition of “graphical user interface,” Patent
`Owner derives the requirement that the “second interface” be an
`“environment.” It is unclear what this term adds to construction. The term
`“environment” is not used in the specification, so we are left to speculate
`what additional features that term might pull into or exclude from the claim.
`To the extent that Patent Owner is attempting to use the term “environment”
`to incorporate additional software components that are not claimed and not
`described in the specification, we decline to do so. Instead, we rely on the
`specification’s description of the graphical interface that the parties agree is
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`what is attempted to be claimed as the “second interface.” The specification
`describes the “second interface” as follows:
`In order to initiate a trading command using the present
`invention, a trader may enter the command using a command-
`line interface, click on a component of a bid and offer in a market
`cell, enter the command using a graphical interface, or may click
`on a piece of data in a data window. After initiating a command
`from a command-line interface, a market cell, or a data window,
`the present invention may verify the entry by presenting a
`graphical interface. This interface may be the same graphical
`interface that may be used to enter a trading command. In
`addition to displaying the graphical interface, a mouse pointer
`may be redirected to a portion of the graphical interface to speed
`up entry of the trading command. After initiating the command,
`but before completing the command, a trader may then alter the
`parameters of the command either to complete entry of the
`parameters or to correct one or more incorrect entries.
`Ex. 1001, 2:8–23. Thus, the specification describes what is attempted to be
`claimed as the “second interface” simply as a “graphical interface.” We
`determine that this is the broadest reasonable construction consistent with
`the specification. Thus, we construe the term “second interface” as a
`“graphical interface.”
`C. Asserted Ground under 35 U.S.C. § 101
`Petitioner alleges that each of the challenged claims is ineligible for
`patenting under Section 101. Pet. 23–53.
`A patent may be obtained for “any new and useful process, machine,
`manufacture, or composition of matter, or any new and useful improvement
`thereof.” 35 U.S.C. § 101. The Supreme Court has held that this statutory
`provision contains an important implicit exception: laws of nature, natural
`phenomena, and abstract ideas are not patentable. Alice Corp. Pty. Ltd. v.
`CLS Bank Int’l, 134 S. Ct. 2347, 2354 (2014); Gottschalk v. Benson, 409
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`U.S. 63, 67 (1972) (“Phenomena of nature, though just discovered, mental
`processes, and abstract intellectual concepts are not patentable, as they are
`the basic tools of scientific and technological work.”). Notwithstanding that
`a law of nature or an abstract idea, by itself, is not patentable, the practical
`application of these concepts may be deserving of patent protection. Mayo
`Collaborative Servs. v. Prometheus Labs., Inc., 132 S. Ct. 1289, 1293–94
`(2012).
`In Alice, the Supreme Court reaffirmed the framework set forth
`previously in Mayo “for distinguishing patents that claim laws of nature,
`natural phenomena, and abstract ideas from those that claim patent-eligible
`applications of those concepts.” Alice, 134 S. Ct. at 2355. The first step in
`the analysis is to “determine whether the claims at issue are directed to one
`of those patent-ineligible concepts.” Id. If the claims are directed to a
`patent-ineligible concept, the second step in the analysis is to consider the
`elements of the claims “individually and ‘as an ordered combination’” to
`determine whether the additional elements “‘transform the nature of the
`claim’ into a patent-eligible application.” Id. (quoting Mayo, 132 S. Ct. at
`1289, 1297). In other words, the second step is to “search for an ‘inventive
`concept’—i.e., an element or combination of elements that is ‘sufficient to
`ensure that the patent in practice amounts to significantly more than a patent
`upon the [ineligible concept] itself.’” Id. (quoting Mayo, 132 S. Ct. at 1294)
`(alterations in original).
`Noting that the two stages involve “overlapping scrutiny of the
`content of the claims,” the Federal Circuit has described “the first-stage
`inquiry as looking at the ‘focus’ of the claims, their ‘character as a whole,’
`and the second-stage inquiry (where reached) as looking more precisely at
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`what the claim elements add—specifically, whether, in the Supreme Court’s
`terms, they identify an ‘inventive concept’ in the application of the ineligible
`matter to which (by assumption at stage two) the claim is directed.” Electric
`Power Grp, LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
`Furthermore, the prohibition against patenting an abstract idea
`“cannot be circumvented by attempting to limit the use of the formula to a
`particular technological environment or adding insignificant postsolution
`activity.” Bilski v. Kappos, 561 U.S. 593, 610–11 (2010) (citation and
`internal quotation marks omitted); see Electric Power, 830 F.3d at 1354
`(“[L]imiting the claims to the particular technological environment of
`power-grid monitoring is, without more, insufficient to transform them into
`patent-eligible applications of the abstract idea at their core.”).
`1. Step 1: Whether the claims are directed to an abstract idea
`The first prong of the Alice test requires us to determine whether the
`challenged claims are directed to an abstract idea. Alice, 134 S. Ct. at 2355.
`In determining whether a method or process claim recites an abstract idea,
`we must examine the claim as a whole. Id. at n. 3.
`Claim 1 of the ’435 patent recites a method where a processor and
`memory that are programmed to “display[] a first interface” comprising a
`“first variable,” which is “a price of the item,” and in response to the
`selection of the “first variable,” to “display[] a second interface.” The
`second interface comprises fields and buttons including a “price field” and a
`“size field” both associated with the item to be traded and both of which are
`“adjustable,” “size up . . . and [] size down button[s],” which can be used to
`adjust the size to the desired size, “price up . . . and [] price down button[s],
`which can used to adjust the price to the desired size, “one or more numeric
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`buttons,” a button that can “submit[]” a trading command. Ex. 1001,
`12:10–35. Independent claim 19 recites almost identical limitations as claim
`1, but as an apparatus claim with a processor and memory programmed to
`perform the steps. Ex. 1001, 13:45–14:9. Claim 31 is very similar to claim
`19, but lacks the up and down buttons for the price and size fields and
`includes the additional limitations that the price and size fields can be pre-
`populated with default prices and sizes, and highlighting the size field. Id. at
`15:1–16:15. We do not discern any difference the variations in wording of
`the independent claims would have on our analysis of them, and Patent
`Owner does not argue that these differences compel different results for
`different independent claims. Thus, we consider claim 1 to be representative
`of independent claims 1 and 19. We discuss claim 31 separately.
`Claim 1, as a whole, recites a sequence for displaying and submitting
`electronic versions of what used to be paper forms—i.e., using two
`interfaces—one displaying price information and the second comprising a
`detailed order form—to confirm or modify orders. This is essentially a
`computerized version of the age-old process of displaying prices and
`providing an order form for placing orders based on that price. Ex. 1026,
`297; Ex. 1018, 2. Indeed, contrary to Patent Owner’s assertion that we are
`improperly distilling the claims, PO Resp. 21, it is only by assessing the
`claims as a whole that it becomes apparent that claim 1 is directed to placing
`and modifying an order and not on the scantily described graphical user
`interface. Merely “relying on a computer to perform routine tasks more
`quickly or more accurately is insufficient to render a claim patent eligible.”
`OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1363 (Fed. Cir. 2015)
`(citing Alice, 134 S. Ct. at 2359).
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`Relying on Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed.
`Cir. 2016), Patent Owner argues that the claims of the ’435 patent are
`directed to “an improvement to computer functionality,” and hence, patent-
`eligible. PO Resp. 21–31. We disagree. The claims at issue here are much
`more akin to those considered by the Federal Circuit in Apple Inc. v.
`Ameranth, Inc., 842 F.3d 1229 (Fed. Cir. 2016), Affinity Labs of Texas v.
`DIRECTV, LLC, 838 F.3d 1253, 1260 (Fed. Cir. 2016), and Electric Power
`Group, 830 F.3d 1350. As the court explained in Electric Power Group,
`Enfish
`relied on the distinction made in Alice between, on one hand,
`computer-functionality improvements, and, on the other, uses of
`existing computers as tools in aid of processes focused on
`“abstract ideas” (in Alice, as in so many other § 101 cases, the
`abstract ideas being the creation and manipulation of legal
`obligations such as contracts involved in fundamental economic
`practices).
`Elec. Power Grp., 830 F.3d at 1354. The court in Electric Power Group
`went on to explain that in Enfish, “the claims at issue focused not on asserted
`advances in uses to which existing computer capabilities could be put, but on
`a specific improvement—a particular database technique—in how
`computers could carry out one of their basic functions of storage and
`retrieval of data.” Id.
`In Ameranth, claim 1 recited an information management and
`synchronous communications system for generating and transmitting menus
`in which a software application:
`facilitates the generation of the second menu by allowing
`selection of catagories [sic] and items from the first menu [stored
`on said storage device and displayable in a window of said
`graphical user interface], addition of menu categories to the
`second menu, addition of menu items to the second menu and
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`assignment of parameters to items in the second menu using the
`graphical user interface of said operating system, said parameters
`being selected from the modifier and sub-modifier menus [stored
`on said data storage device and displayable in a window of said
`graphical user interface]
`842 F.3d at 1234. The first menu is displayed to a user and another menu
`may be generated in response to the selections made. Id. The court found
`that “[t]he patents claim systems including menus with particular features.
`They do not claim a particular way of programming or designing the
`software to create menus that have those features, but instead claim the
`resulting systems.” Id. at 1241.
`In Affinity Labs, the representative claim recited a broadcast system
`
`with a network based resource and an application running on a wireless
`cellular phone, where the application enabled the cellular telephone device:
`to present a graphical user interface comprising at least a partial
`listing of available media sources on a display associated with
`the wireless cellular telephone device, wherein the listing
`includes a selectable item that enables user selection of the
`regional broadcasting channel;
`to transmit a request for the regional broadcasting channel from
`the wireless cellular telephone device; and
`to receive a streaming media signal in the wireless cellular
`telephone device….
`838 F.3d at 1255–56. The court explained that “[t]he patent in this case is
`not directed to the solution of a ‘technological problem,’ . . . nor is it
`directed to an improvement in computer or network functionality.” Id. at
`1262. Instead, the court determined that the patent “claim[ed] the general
`concept of out-of-region delivery of broadcast content through the use of
`conventional devices, without offering any technological means of effecting
`that concept.” Id.
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` Much like the claims in Ameranth and Affinity Labs, the claims of
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`the ’435 patent recite a result—displaying trading commands (and possibly
`price information) and a computerized order form that can be submitted to
`an electronic trading system—as opposed to an improvement in the
`functioning of the computer. In a manner similar to a second menu being
`displayed to the user after making a selection from a first menu in Ameranth,
`claim 1 recites the display of a “second interface” that allows data entry in
`response to receiving an input from the user. See Ex. 1001, 12:15–35. The
`claims next recite that the “second interface” has certain fields and buttons
`to receive data from the user. These data fields represent the essential
`blanks of any paper order form—price and size of the order. Tr. 26:20–
`27:15. Beyond the most generic computer interface buttons and fields
`(up/down arrows, data fields, numeric buttons, and confirmation buttons),
`the claims of the ’435 patent do not recite, nor does the specification
`describe, features concerning computer functions associated with achieving
`these elements. Claim 1 further recites that selecting of certain buttons can
`change the data displayed in certain fields and that selecting another button
`submits the order. Ex. 1001, 12:25–37. The numeric buttons are the
`computer equivalents of any keypad or using a pen to enter data into a paper
`form and the submit button is the electronic equivalent of handing the form
`to the attendant.
`Again, the claims of the ’435 patent do not recite, nor does the
`specification describe, features concerning computer functions associated
`with achieving these elements. Indeed, aside from this modicum of detail
`about the particular graphical user interface elements, claim 1 of the ’435
`patent are similar to the claims at issue in Affinity Labs where the cellular
`
`
`17
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`
`
`
`
`CBM2016-00048
`Patent 8,060,435 B2
`telephone and graphical user interface were “tools in the aid of a process
`focused on an abstract idea.” Affinity Labs, 838 F.3d at 1262. In this case,
`the computer is used as a tool to confirm and modify an order. Thus, unlike
`Enfish, claim 1 is not directed to an improvement to computer functionality
`or the way computers operate, but merely to the resulting system, i.e., to
`independently abstract ideas that use computers as tools. Comparing the
`claims at issue here to those considered in Ameranth and Affinity Labs, it is
`clear that these claims are the same type of broad functional claims directed
`to abstract ideas.
`Indeed, Patent Owner’s contention that “[r]ather, the focus of the
`claims, when read in light of the specification, is ‘on the specific asserted
`improvement in computer capabilities,’ namely, the improved graphical user
`interface that provides a particular layout, configurable options, settings, and
`other features to allow a trader to use a pointing device to execute trades
`from tabular information more quickly, efficiently, and accurately,” PO
`Resp. 23, is belied by the claims themselves. To begin with, Patent Owner
`and its expert conceded that there is nothing recited in the claims about a
`“particular layout,” “configurable options” or “settings,” merely that a
`graphical user interface “can be configurable.” Tr. 17:9–21 (“The fact that it
`is configurable is not specifically recited, but what the [graphical user
`interface] allows is an interface that can be configurable….”); Ex. 1032,
`58:3–59:10. Moreover, none of the independent claims recite a “pointing
`device.” Tr. 17:22–18:9 (“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.”).
`Our focus must be on the claims, not unclaimed features that could be added
`or are mentioned in the specification. See Synopsis, Inc. v. Mentor Graphics
`
`
`18
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`CBM2016-00048
`Patent 8,060,435 B2
`Corp., 839 F.3d 1138, 1149 (Fed. Cir. 2016) (“The § 101 inquiry must focus
`on the language of the Asserted Claims themselves.”). On the contrary, as
`we explain above, we consider the claims at issue here to claim merely the
`use of a computerized data entry form, directly analogous to the long-used
`paper order slip, with an electronic trading system.
`Finally, at the oral hearing, Patent Owner directed our attention to the
`Federal Circuit’s non-precedential opinion in Trading Technologies
`International, Inc. v. CQG, Inc., 675 F. App’x 1001 (Fed. Cir. Jan. 18, 2017)
`(non-precedential). Tr. 24:1–12. Even if Trading Technologies were
`precedential, it is inapposite. Instead, Patent Owner’s claims resemble those
`claims that the district court and Federal Circuit in Trading Technologies
`distinguish as patent ineligible. Compare Trading Techs. Int’l, Inc. v. CQG,
`Inc., No. 05-cv-4811, 2015 WL 774655 at *4 (N.D. Ill. Feb. 24, 2015)
`(noting “[i]f the claims simply provided for ‘setting, displaying, and
`selecting’ data information, CQG would be correct in its assessment that the
`claims are directed to an abstract idea”) with Ex. 1001, claim 1
`(“display[ing] a first interface . . . ,” “in response to a selection of . . . [a]
`trading command[] . . . display[ing] a second interface” with “a price field in
`which a price . . . is adjustable,” “a size field in which the size . . . is
`adjustable,” “one or more numeric buttons [to adjust the size displayed in the
`size field],” “at least one button for confirming [one of the trading
`commands],” and “at least one second button for submitting [the second
`trading command] . . .”); see also Trading Techs., 675 F. App’x at 1005
`(“ineligible claims generally lack steps or limitations specific to a solution of
`a problem, or impr
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