trials@uspto.gov
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`571-272-7822
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`CBM2016-00031, Paper No. 46
`CBM2016-00032, Paper No. 50
`CBM2016-00051, Paper No. 43
`May 31, 2017
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., and TRADESTATION SECURITIES, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`____________
`
`Held: May 3, 2017
`____________
`
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`May 3, 2017, commencing at 1:30 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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`CBM2016-00031, Paper No. 46
`CBM2016-00032, Paper No. 50
`CBM2016-00051, Paper No. 43
`May 31, 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP,
`INC., and TRADESTATION SECURITIES, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`____________
`
`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`____________
`
`Held: May 3, 2017
`____________
`
`
`
`
`BEFORE: SALLY C. MEDLEY, MEREDITH C. PETRAVICK,
`and JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`
`
`The above-entitled matter came on for hearing on Wednesday,
`May 3, 2017, commencing at 1:30 p.m., at the U.S. Patent and
`Trademark Office, 600 Dulany Street, Alexandria, Virginia.
`
`
`
`
`
`and
`
`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`APPEARANCES:
`
`ON BEHALF OF THE PETITIONER:
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`ON BEHALF OF PATENT OWNER:
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`JAY KNOBLOCH, ESQUIRE
`Trading Technologies
`222 South Riverside Plaza, Suite 1100
`Chicago, Illinois 60606
`
`and
`
`JENNIFER M. KURCZ, ESQUIRE
`LEIF R. SIGMOND, Jr., ESQUIRE
`McDonnell, Boehnen, Hulbert & Berghoff, LLP
`300 South Wacker Drive
`Chicago, Illinois 60606-6709
`
` 2
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`JOHN C. PHILLIPS, ESQUIRE
`Fish & Richardson, P.C.
`12390 El Camino Real
`San Diego, California 92130
`
`ROBERT SOKOHL, ESQUIRE
`RICHARD M. BEMBEN, ESQUIRE
`Sterne, Kessler, Goldstein, Fox
`1100 New York Avenue, N.W.
`Washington, D.C. 20005
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`
`P R O C E E D I N G S
`- - - - -
`JUDGE PETRAVICK: Today we are here to hear three
`covered business method cases, CBM2016-00031,
`CBM2016-00032, CBM2016-00051. So each side has 60
`minutes to present consolidated arguments in the 31 and 51
`CBMs. We'll be doing those first. And then you have 30 minutes
`per side to do the 32 CBM. Petitioner, you will start. Would you
`like to reserve any of your 60 minutes for rebuttal?
`MR. PHILLIPS: Sure, 15 minutes. I'm going to be
`exceedingly brief today.
`JUDGE PETRAVICK: Just because we give you
`60 minutes doesn't mean you have to use all of it.
`MR. PHILLIPS: Exactly. I'm certainly not.
`JUDGE PETRAVICK: Also, we do have Judge
`Medley joining us today. And I'm Judge Petravick. And we have
`Judge Plenzler joining us via the screen from Detroit. Judge
`Plenzler cannot see the ELMO slides. Because you didn't send us
`any demonstratives, you are going to need to tell him where he
`can find the information in the record and then pause briefly so
`that he can find the information so he can see what we are talking
`about. So please remember to do that.
`MR. PHILLIPS: I will try to do my best.
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`
`JUDGE PETRAVICK: With the demonstratives that
`the patent owner talked about, you'll need to tell us the slide
`number.
`Can everybody hear me? All right. You may begin
`when you are ready.
`MR. PHILLIPS: Thank you, Your Honor, and good
`afternoon. As a preliminary matter, I wanted to -- I have spoken
`with opposing counsel about this, as you know, the ELMO is not
`working today and I was preparing to use the ELMO to show
`verbatim portions of the record. So because it's not available, I
`just found out yesterday, what I have done is I have come up with
`four slides. They weren't submitted as demonstratives and they
`are essentially just cut and paste from the record into the slides.
`So opposing counsel doesn't oppose that, and I hope that's okay.
`JUDGE PETRAVICK: That's fine with us.
`MR. PHILLIPS: Thank you. Okay. So I'm John
`Phillips from Fish & Richardson on petitioner's behalf. I'm
`discussing two of the three patents today, the '996 and the '374.
`They are members of what's called the Brumfield family of
`patents. As you know, we've already had hearings and final
`written decisions issued on six related patents. So my assumption
`is that Your Honors are intimately familiar with the issues here
`and I'm not going to belabor them as a result. As I said, I will be
`mercifully brief in large part because I just found out yesterday
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`that I was arguing. My co-counsel, my colleague got the flu at
`the last second. So it fell upon me.
`In any event, I want to make three basic points today.
`Number one, that the computer-readable medium claims, the
`CRM claims in both patents are nonstatutory because they read
`on transitory signals. And that applies to all claims of the '996
`patent.
`
`Secondly, with regard to patent eligibility under Alice,
`the Federal Circuit's decision in CQG is inapplicable. It has
`different parties, different patents, different record. And when I
`refer to CQG, I assume you understand that's the Trading
`Technologies v. CQG decision from the Federal Circuit that just
`issued during these proceedings and post briefing -- well, that's
`not true. We have the reply brief.
`And thirdly, given that CQG is not applicable, on their
`own merits, the Board should reach the same conclusion with
`regard to the '996 and '374 patents, as it did in the '411 CBM,
`namely that the claims are fatally abstract under Alice.
`Moving on to point number one, all claims in the '996
`patent and claim 36 in the '374 patent are nonstatutory because
`they are not limited to encompassing only nontransitory media or
`in other words, broad enough to include both transitory and
`nontransitory.
`The '996 claims and the '374 preambles up there on the
`screen, these are claim number 1 from the '996 patent and claim
`
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`number 36 from the '374 patent. So I believe those would be
`Exhibits 1001 in both proceedings. As you can see, the '996
`recites -- is a single independent claim which recites a
`computer-readable medium having program code recorded
`thereon is the relevant language for execution to perform the
`following method steps. And similarly, the '374 preamble recites
`a computer-readable medium having stored therein instructions to
`execute a method. Now, in both cases, the terms
`"computer-readable medium" and "recorded" and "stored" for that
`matter, appear nowhere in the patent specification. They appear
`only in the claims themselves. And in both cases neither the
`independent claim nor any dependent claims are limited by the
`claim language to nontransitory media.
`So in the institution decisions, the Board correctly
`found that under the BRI, that computer-readable medium
`encompasses transitory media such as signals which would be
`unpatentable under two cases, the names of which I'm uncertain
`of how to pronounce. I believe it's In Re: Nuijten and Ex Parte
`Mewherter. So unless somebody corrects me, that's what I'm
`going to call them.
`JUDGE PETRAVICK: I have heard it said Nuijten or
`Nuijten.
`MR. PHILLIPS: Thank you. The Board's decision in
`the latter, the Mewherter, is directly on point and note that it's
`been designated as precedential. In that case the claim in
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`question recited machine-readable storage medium having stored
`there on a computer program to perform the steps of.... And
`similarly as here, there was nothing in the specification to define
`or limit that language. So the Mewherter holding is basically that
`when the specification is silent on the topic, the BRI
`computer-readable medium covers transitory signals. And in the
`words of the panel, quote, the broadest reasonable interpretation
`of a claim drawn to a computer-readable medium typically covers
`transitory propagating signals, per se, in view of the ordinary and
`customary meaning, particularly when the specification is silent.
`So I submit that Mewherter's facts are indistinguishable
`from present cases. The language there, the machine-readable
`storage medium having stored thereon, is nearly identical to the
`language in the '996 and '374 CR claims. As I mentioned,
`Mewherter mentions the machine-readable storage medium
`instead of computer-readable medium. But the Court in that case
`basically said they were equivalent and it uses stored thereon as
`opposed to recorded thereon and stored therein, which I believe
`are reasonably interpreted as synonyms of each other.
`Now, in all three cases, in the Mewherter decision and
`in the two patents, the spec is silent, as I mentioned. There's
`nothing in the specification to define or limit CRM to exclude
`transitory media such as signals, carrier waves and the like.
`Neither recorded or stored appear in the specifications in the
`patent. And there's no implied disclosure either. There's no
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`mention or description of any hardware that would imply that the
`CRM is limited nontransitory media such as memory, disc or
`drive.
`
`In the institution decisions, the Board left open
`development of the record and invited further argument and
`evidence for anything that would limit the CRM claims to
`tangible media to nontransitory media. In response, TT, Trading
`Technologies, the patent owner, responded that the phrase
`"having program code recorded thereon" with recorded being the
`operative word, limited the claim to nontransitory media. But I
`note that in their own exhibit, the McGraw Technical Dictionary
`defines record as, quote, a group of adjacent data items in a
`computer system manipulated as a unit. And that's Exhibit 2133.
`And as you can see, it says nothing about -- that suggest that such
`recording is limited to nontransitory medium. Similarly, the
`petitioner's Exhibit 1043 provides a dictionary definition of
`recorded that is consistent with that as well.
`TT further argued that the extrinsic evidence of record
`in the Mewherter case supposedly fails to establish that CRM, the
`computer-readable medium, covered transitory signals before
`2002. There was a footnote in that case referring to the date. But
`I submit that's irrelevant. The holding is that absent something
`explicitly or implicitly in the specification in the patent pointing
`to the contrary that the BRI of computer-readable medium
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`encompasses transitory signals. And there was nothing in the
`decision that says it's only limited to patents dated 2002 and later.
`Moreover, the extrinsic evidence in this proceeding
`compels opposite conclusion to TT's assertion. TT's own
`dictionary definition of record, as I mentioned, suggests that it
`doesn't preclude the claim from reading on transitory media as
`well as petitioner's dictionary definitions, Exhibits 1016 and 1043
`are consistent with that as well.
`So in sum, all evidence points to the conclusion that a
`CRM claim encompasses transitory signals just as was held in the
`Mewherter case.
`That's it for point one. If there are no questions, I'll
`move on.
`Secondly, the Federal Circuit's decision in CQG, the
`eligibility under Alice is not controlling. And that's true for a
`number of reasons. First it's nonprecedential and should not be
`applied in other contexts such as here. Instead the Board should
`follow the closest precedential authority such as Amaranth,
`Electric Power, Affinity Labs and Internet Patents Corp., I
`believe, all of which have been briefed in our submissions. And I
`won't repeat what those arguments are. I'll leave it on the
`briefing.
`Secondly, the CQG case involved different parties,
`different patents and different records. As a result, the CQG
`decision did not and constitutional could not establish the
`
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`Brumfield family of patents as a whole are necessarily patent
`eligible as a matter of law or fact against all challengers.
`JUDGE PLENZLER: Excuse me. Let me interrupt you
`real quick. I know you mentioned that there were different
`patents addressed in the CQG case. First of all, what we have
`here for the '996 patent, for example, isn't that patent narrower
`than the '304 patent that was addressed in CQG?
`MR. PHILLIPS: It certainly has some different
`language. I think it might be narrow in some respects and
`broader in others.
`JUDGE PLENZLER: What limitations is it missing? If
`I look at claim 1 from each patent, what limitations am I missing
`in the '996 patent versus the '304?
`MR. PHILLIPS: I don't have an answer to that. I'm
`sorry, my preparations did not include looking at that. So as I
`was saying, they could not establish that the Brumfield patents
`are, for all purposes and all comers, eligible as a patent as a
`matter of fact or law. Rather, Supreme Court precedent such as
`Parklane Hosiery establishes that a finding by the Court adverse
`to one party in a first proceeding cannot be binding on a different
`party in a second proceeding. There's no offensive collateral
`estoppel.
`JUDGE PLENZLER: Can you tell me, though, what
`are the different facts here if we are just focused on the 31 case,
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
`
`for example? So the '996 patent, what are the different pieces of
`evidence you have for, let's say, abstract idea, for example?
`MR. PHILLIPS: Right. And I'm getting to that. I can
`jump ahead. We included a number of references which I can
`show here, which I guess you can't see, the Weiss Exhibit 1020
`and Gutterman, Exhibit 1004 and TSE Exhibit 1003 all show that
`the notion of having a vertical price axis in a display to use by a
`human for informational purposes was known both in the
`preelectronic trading area. In terms of Weiss it was handwritten.
`And in terms of computerized trading interfaces under Gutterman
`and TSE, that notion was present as well.
`JUDGE PLENZLER: I guess for Weiss, I see where
`you discussed that relative to the portion of the petition that
`addresses the abstract idea. Where do you address Gutterman or
`TSE in your discussion of whether or not the claims are directed
`to an abstract idea in the petition, for example?
`MR. PHILLIPS: I couldn't give you an exact cite. I
`know Weiss, for example, is described in that respect. It talks
`about -- the brief talks about that the claimed method could be
`performed by hand, which is one of the factors that Courts have
`looked at, whether or not it's an abstract idea.
`JUDGE PLENZLER: Is part of the difference here,
`though, between what happened in the CQG case at the Federal
`Circuit and I guess what you are asserting in the these CBMs, the
`way that you are characterizing what the claim is directed to is
`
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`what you are doing broader than what the Federal Circuit did in
`CQG? And if so, does evidence have any impact on that, just
`characterizing what the claims are directed to?
`MR. PHILLIPS: Certainly in terms of the '374 patent
`the subject matter is much broader. In fact, the Board, this panel
`in the institution decision said that it's difficult to -- I don't have
`the exact quote here. I do have it somewhere. It's difficult to
`imagine the outer breadth of the claim, basically. And it
`specifically treated in the institution decision the fact that the '374
`was notably different and not analogous to the '304 patent in
`CQG.
`
`JUDGE PLENZLER: What if we assume that the '996
`patent has every limitation that the '304 has and then some?
`MR. PHILLIPS: Right. In that case I would say the
`relevance of the evidence is to show that the notions in the
`preelectronic trading era did include analogous displays such is as
`shown in Weiss. And therefore, what the GUI claims are doing is
`well known and conventional, which is one of the criteria under
`the abstract idea analysis.
`JUDGE PLENZLER: But do you think that your
`characterization of what the claims are directed to is broader than
`what the Federal Circuit said in CQG? I mean, if we have all the
`limitations in the '996 claim that were in the '304, arguably it's
`directed to something at least equally, if not narrower in scope,
`right? So I'm wondering does the Federal Circuit in CQG have a
`
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`narrower reading of what the claims are directed to in that case
`for the '304 patent and how does that affect what we do with the
`'996 patent?
`MR. PHILLIPS: Yes. In the CQG opinion they
`specifically relied on the abstract ideas including electronic
`trading. And our articulation of the abstract does not include that.
`It's the basic idea of trading based on information that's presented
`to you. And therefore, our abstract idea is broader in that sense
`and I think the evidence in our record is relevant to that point.
`So I was saying that the analysis here with CQG should
`be analogous to the patentability challenges under 102 and 103
`context which a patent is never held to be valid. It's only that the
`challenger in that particular case has failed to prove invalidity and
`that any subsequent challengers have their own chance to prove
`invalidity under whatever statutory basis is at issue, whether it's
`101, 102 or 103. So the CQG decision can be read only to mean
`that the challenger in that proceeding failed on the record
`developed during that proceeding to meet its burden of
`demonstrating that different patent claims were patent ineligible.
`So here we have our own -- are entitled to our own
`challenge decided independently of the record developed in this
`proceeding and not based on what the CQG Court held. In fact,
`in Novartis v. Noven Pharma, the Federal Circuit recently ruled
`that different records on the same patent can result in different
`results and held that a prior federal court decision did not control
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`the PTAB's subsequent contrary decision of patentability of the
`same patent because the record in the PTAB proceeding included
`evidence not before the district court, which is also the case we
`have here.
`JUDGE PLENZLER: Could you help me understand a
`statement that you have in your petition in the CBM2016-51 case.
`I know you mentioned before that that one addresses the '374
`patent that you mentioned was broader in scope. Is there any real
`difference, though, in scope for those claims that makes a
`meaningful difference for the 101 analysis versus the other cases,
`the 161, 181, 182 cases that address the '304 patent as well as the
`others?
`
`MR. PHILLIPS: I think so, and it seems the Board
`thought so as well. As I mentioned, they -- in the institution
`decision, this panel stated that the claims are significantly broader
`in the '374, that they don't require displaying any prices. They
`don't require any particular arrangement of the display and said
`that it's difficult to understand what the outer breadth of the
`claims could even encompass.
`JUDGE PLENZLER: I'm just trying to reconcile that
`with page 29 of the petition in the 51 case that says that the
`differences between the patents in the CBM 51, 61, 181 and 182
`and the '374 patent, for example, which is, as you mentioned,
`arguably the broader one, are immaterial for purposes of the 101
`analysis. What are we supposed to do with that statement?
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`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`MR. PHILLIPS: I'm sorry, could you repeat that?
`JUDGE PLENZLER: You said that the differences
`between the patents in the other proceedings, in 161, which is the
`'304 patent, and then the other related proceedings, 181 and 182,
`says the differences between those patents and the '374 patent are
`immaterial for purposes of the 101 analysis.
`MR. PHILLIPS: I would say that -- I haven't looked at
`that recently, but I would say that those differences relate to well-
`known conventional features that don't impart patent eligibility.
`JUDGE PLENZLER: So not relative to the
`characterization of the abstract idea? In all of these it seems like
`you are characterizing pretty much the abstract ideas being more
`or less the same thing in all of these cases, correct?
`MR. PHILLIPS: Not as was articulated in '304, but,
`yeah, our articulation, I think, is relatively similar. And the fact
`that the '996 includes additional details, just conventional well
`known details of known techniques is not sufficient to impart
`patentability.
`So as we talked about before, the CQG case included no
`testimonial or other evidence about what was conventional, well
`known or long used fundamental. And the CQG Court in that
`regard noted that that was a relevant inquiry, that the threshold
`level of patent eligibility is often usefully explored by the way of
`substantive statutory criteria of patentability, meaning 102 and
`103, for an invention that is new, useful and unobvious is more
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`readily distinguished from the generalized knowledge that
`characterizes ineligible subject matter. But in that record, the
`CQG record, there was no evidence regarding what was new,
`useful and nonobvious, unlike in the records here. We do have
`evidence of what was new, useful and obvious. So the CQG
`Court did not make any meaningful determinations in that regard,
`determinations which should be made in this case, given the
`evidence of record.
`JUDGE PETRAVICK: Counsel, in the CQG case, the
`Court stated that -- the District Court stated that electronic trading
`wasn't old and had only been around for 20 years or so. That
`seems to have come from some evidence in the record that maybe
`open pit trading is different than electronic trading. And I believe
`Dr. Christopher Thomas might have testified that those two
`things don't necessarily work together as to how the trades are
`matched at the exchange. Could you enlighten us a little bit more
`on that testimony, because that seems to be one of the differences
`between the evidence in the record and the District Court case
`and here. And I'm sort of wondering why that's relevant, when
`these claims don't actually have any limitations or steps of
`actually making the trade. It's just this plain information of
`sending a trade.
`MR. PHILLIPS: Right. I would say that the abstract
`idea does not include, is not limited just to electronic trading, that
`it includes trading in general which has gone back to the 1600s. I
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`think Dr. Thomas even admitted that trading in general is a
`fundamental basic idea.
`JUDGE PETRAVICK: So the claim is to the
`Gutterman style, the Silverman style of trading, whatever is going
`on at the electronic trading exchange would all be encompassed
`within these claims given that we use BRI.
`MR. PHILLIPS: I'm sorry. Can you repeat that,
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`please?
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`JUDGE PETRAVICK: I guess what I'm asking for is
`information as to why that statement is sort of in the decisions
`and why the difference between open pit trading and, quote,
`whatever electronic trading and differences as to how an
`exchange, different types of electronic trading exchanges make
`matching of orders is relevant to our analysis here when our claim
`is only limited to displaying information and sending orders and
`there's no limitations as to how orders are matched or what
`happens at the exchange.
`MR. PHILLIPS: I would say that analysis is correct.
`It's simply the difference between preelectronic and electronic is
`arbitrary and doesn't have applicability here, that really the
`abstract ideas we articulated is trading in general and not limited
`to electronic trading.
`JUDGE PETRAVICK: Is that a difference between the
`evidence here? The patent owner didn't bring forward that
`argument or evidence in these proceedings, which seems to have
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`played a factor in the District Court proceedings. Is that a correct
`statement?
`MR. PHILLIPS: I think that's right, yes.
`JUDGE PETRAVICK: Thank you.
`MR. PHILLIPS: In any event, so the evidence we have
`here, as I mentioned, I think, compares a contrary conclusion as
`was held in CQG, as we mentioned, that the Court found that the
`claims of GUI in that case had no preelectronic trading analog.
`But as we show here, there was, and we have evidence of that. In
`Weiss there was a preelectronic trading analog. There's a
`strikingly similar visual appearance of the Weiss interface, the
`Weiss display, rather, that has the vertical column of prices that
`do not move. And then based on changing circumstances, the
`buy and sell orders would be moved to different locations along
`the axis rather than vice versa.
`And even if taking into account the computerized
`electronic trading area, there's other evidence that the static price
`axis was well known, at least the vertical price axis where order
`information was aligned against the price axis there. I know there
`was disagreement as to whether that shows a static price axis, but
`I submit that it does. And it remains static unless and until a user
`clicks one of the arrows below the central axis there, 136.
`And similarly, in TSE, it shows an axis, a static price
`axis which are the numbers underneath the heading closing mark.
`So that's evidence here that we have that's relevant to whether or
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`not the features of the display were well known and fundamental,
`but also evidence as to the lack of an inventive concept because
`they are not novel or unobvious.
`I would mention also that in terms of step 2, the '374
`does not include the words "a static price axis" in any claim. So
`that cannot be an inventive concept for the '374 patent. Similarly,
`with the '996 patent, TT never argued in these proceedings that
`the static price axis constituted an inventive concept. Rather,
`they argue that the structure function and makeup of a GUI was
`the inventive concept, which I submit is in addition to being
`vague and nonspecific or not specific enough to qualify as an
`inventive concept, it also finds no support in the specification or
`claims. That articulation does not.
`JUDGE PLENZLER: So would whether or not
`something recites a statics price axis versus an axis or even a
`price axis have any impact either way on the analysis making
`something eligible or ineligible? Is it just something that really
`doesn't matter either way?
`MR. PHILLIPS: I would say based on the
`circumstances in this case, that the recitation of a static price axis
`cannot qualify -- properly be a decisional basis for determining
`that there's an inventive concept because it was not argued to be.
`Rather, something else was argued to be the inventive concept,
`the structure, functionality and makeup of a GUI specifically.
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`And I think I might have covered all my points. Is there
`any further questions?
`JUDGE PETRAVICK: I have nothing. You have 16
`extra minutes in addition to the 15.
`MR. PHILLIPS: Thank you.
`JUDGE PETRAVICK: Please introduce yourself for
`the court reporter and you may start when you are ready.
`MR. KNOBLOCH: Thank you. Good afternoon. My
`name is Jay Knobloch and I'm in-house patent counsel at Trading
`Technologies. I'm here today with my colleague, Steve Borsand
`and our outside counsel, Leif Sigmond and Jennifer Kurcz.
`I have two main points today and maybe perhaps a
`third. But the first that I want to make is that for purposes of 101,
`there is no meaningful difference between the '996 and '374
`patents and the '132 and '304 patents that were found to be patent
`eligible by the Federal Circuit and also this panel. I believe that
`petitioners also agree with this. And as I was going to point out
`to page 29 of the '374 patent that was already discussed, where
`petitioners in their petition say that the differences between those
`patents, and they are referring to the '132 and '304 patents, and
`the '374 patent are immaterial for purposes of 101 analysis.
`The second point that I'll address here today is that in
`light of the record before us today and in particular the written
`description of the '996 and '374 patents, that one skilled in the art
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`CBM2016-00031 (Patent 7,813,996 B2)
`CBM2016-00032 (Patent 7,212,999 B2)
`CBM2016-00051 (Patent 7,904,374 B2)
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`would have not concluded that the term "computer-readable
`media" would encompass signals or other nontransitory media.
`Turning first to the Alice test under 101, while the
`claims are not exactly the same, which has already been discussed
`a little bit, there is no meaningful difference between these claims
`and the '132 and '304 patents for purposes of analyzing patent
`eligibility under the Alice test.
`While the petitioner talks about the record and the
`parties being different, today I would like to talk about the claims
`and the specification and the problem that these technologies
`solve. They address the same problem that the '132 and '304
`addressed. I'll discuss this in just a minute. And like the '132 and
`'304 patents, the claim language and the elements are directed to
`similar specific implementations that recite the structure, makeup
`and functionality of a particular graphical user interface tool.
`And I'll note even before I get to this spot that even as
`petitioner brings up
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