Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper 44
`Entered: August 7 2017
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`__________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`__________________
`
`IBG LLC,
`INTERACTIVE BROKERS LLC, TRADESTATION GROUP, INC., and
`TRADESTATION SECURITIES, INC.,
`Petitioner,
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.,
`Patent Owner.
`__________________
`
`Case CBM2016-00051
`Patent 7,904,374 B2
`_______________
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`
`PLENZLER, Administrative Patent Judge.
`
`
`
`
`FINAL WRITTEN DECISION
`Covered Business Method Patent Review
`35 U.S.C. § 328(a) and 37 C.F.R. § 42.73
`
`
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`Patent 7,904,374 B2
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`INTRODUCTION
`
`A. Background
`IBG LLC, Interactive Brokers LLC, TradeStation Group, Inc., and
`TradeStation Securities, Inc. (collectively, “Petitioner”) filed a Petition on
`March 29, 2016 requesting covered business method patent review of claims
`1–36 (the “challenged claims”) of U.S. Patent No. 7,904,374 B2 (Ex. 1001,
`“the ’374 patent”). Paper 3 (“Pet.”). On July 5, 2016, Trading Technologies
`International, Inc. (“Patent Owner”) filed a Preliminary Response. Paper 8
`(“Prelim. Resp.”). On August 17, 2016, we instituted a covered business
`method patent review (Paper 11, “Institution Decision” or “Inst. Dec.”)
`based upon Petitioner’s assertion that claims 1–36 are directed to patent
`ineligible subject matter under 35 U.S.C. § 101. Inst. Dec. 22. Subsequent
`to institution, Patent Owner filed a Patent Owner Response (Paper 18, “PO
`Resp.”) and Petitioner filed a Reply (Paper 23, “Pet. Reply”) to Patent
`Owner’s Response. Pursuant to our authorization, Patent Owner filed an
`additional submission addressing the Federal Circuit’s holding in
`Technologies International, Inc., v. CQG, Inc., No. 2016-1616, 2017 WL
`192716 (Fed. Cir. Jan. 18, 2017) (“CQG”) (Paper 29, “PO Add’l Sub.”), and
`Petitioner filed a reply to that submission (Paper 30). Petitioner filed a
`Motion to Exclude Evidence (Paper 31), and Patent Owner also filed a
`Motion to Exclude Evidence (Paper 34).
`We held a joint hearing of this case and several other related cases on
`May 3, 2017. Paper 43 (“Tr.”).
`We have jurisdiction under 35 U.S.C. § 6. This Final Written
`Decision is issued pursuant to 35 U.S.C. § 328(a) and 37 C.F.R. § 42.73.
`For the reasons that follow, we determine that Petitioner has shown
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`sufficiently that claims 1–36 of the ’374 patent are directed to patent
`ineligible subject matter under 35 U.S.C. § 101.
`B. Related Proceedings
`The parties indicate numerous related U.S. district court proceedings,
`including at least one proceeding specifically directed to the ’374 patent.
`Pet. 2; Paper 6, 1–5.
`Numerous patents are related to the ’374 patent and the related patents
`are or were the subject of numerous petitions for covered business method
`patent review and reexamination proceedings. As noted above, the Federal
`Circuit has issued a non-precedential decision, CQG, which addresses
`whether claims of U.S. Patent Nos. 6,766,304 (“the ’304 patent”) and
`6,772,132 (“the ’132 patent”) are patent eligible under § 101. The ’374
`patent at issue in this case is related to the ’132 and ’304 patents via
`continuation and divisional filings.
`C. Asserted Grounds
`Petitioner contends that the challenged claims are unpatentable under
`35 U.S.C. § 101. Pet. 27–50.
`D. The ’374 Patent
`The ’374 patent is titled “Click Based Trading with Intuitive Grid
`Display of Market Depth.” Ex. 1001, (54). The ’374 patent describes a
`display, named the “Mercury” display, and method of using the display to
`trade a commodity. Id. at Abstract, 3:5–10. The ’374 patent explains that
`the Mercury display is a graphic user interface (“GUI”) that dynamically
`displays the market depth of a commodity traded in a market and allows a
`trader to place an order efficiently. Id. at 3:11–20. The Mercury display is
`depicted in Figure 3, which is reproduced below.
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`Figure 3 of the ’374 patent illustrates an example of the Mercury display
`with example values for trading a commodity, including prices, bid and ask
`quantities relative to price, and trade quantities.
`The Mercury display includes a plurality of columns. Column 1005 is
`a static price axis, which includes a plurality of price values for the
`commodity. See id. at 7:23–25. The ’374 patent explains that “[t]he column
`does not list the whole prices (e.g. 95.89), but rather, just the last two digits
`(e.g. 89).” Id. at 7:25–26. Columns 1003 and 1004 are aligned with the
`static price axis and dynamically display bid and ask quantities, respectively,
`for the corresponding price values of the static price axis. See id. at 7:23–37.
`The ’374 patent explains that “[t]he exchange sends the price, order and fill
`information to each trader on the exchange” and that “[t]he physical
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`mapping of such information to a screen grid can be done by any technique
`known to those skilled in the art.” Id. at 4:59–66.
`Column 1002 contains various parameters and information used to
`execute trades, such as the default quantity displayed in cell 1016. See id. at
`7:55–8:23. A trader executes trades using the Mercury display by first
`setting the desired commodity and default parameters, such as default
`quantity. See id. at 8:56–9:3; Fig. 6, step 1302. Then, a trader can send a
`buy order or sell order to the market with a single action, such as clicking on
`the appropriate cell in column 1003 or 1004. See id. at 8:60–9:48; Fig. 6,
`steps 1306–1315.
`E. Illustrative Claim
`As noted above, Petitioner challenges claims 1–36. Claims 1 and 36
`are independent, with claims 2–35 depending from claim 1. Claim 1 is
`representative, and is reproduced below:
`1. A method for facilitating trade order entry, the method
`comprising:
`receiving, by a computing device, market data for a
`commodity, the market data comprising a current highest
`bid price and a current lowest ask price available for the
`commodity;
`identifying, by the computing device, a plurality of sequential
`price levels for the commodity based on the market data,
`where the plurality of sequential price levels includes the
`current highest bid price and the current lowest ask price;
`displaying, by the computing device, a plurality of graphical
`locations aligned along an axis, where each graphical
`location is configured to be selected by a single action of
`a user input device to send a trade order to the electronic
`exchange, where a price of the trade order is based on the
`selected graphical location;
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`mapping, by the computing device, the plurality of sequential
`price levels to the plurality of graphical locations, where
`each graphical location corresponds to one of the plurality
`of sequential price levels, where each price level
`corresponds to at least one of the plurality of graphical
`locations, and where mapping of the plurality of sequential
`price levels does not change at a time when at least one of
`the current highest bid price and the current lowest ask
`price changes; and
`setting a price and sending the trade order to the electronic
`exchange in response to receiving by the computing
`device commands based on user actions consisting of:
`(l) placing a cursor associated with the user input device
`over a desired graphical location of the plurality of
`graphical locations and (2) selecting the desired graphical
`location through a single action of the user input device.
`Ex. 1001, 11:39–12:5.
`
`
`ANALYSIS
`
`A. Claim Construction
`In a covered business method patent review, claim terms are given
`their broadest reasonable interpretation in light of the specification in which
`they appear and the understanding of others skilled in the relevant art. See
`37 C.F.R. § 42.300(b).
`Applying that standard, we interpret the claim terms of the ’374 patent
`according to their ordinary and customary meaning in the context of the
`patent’s written description. See 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). Petitioner proposes constructions for
`several terms (Pet. 24–27), and Patent Owner does not propose any explicit
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`claim construction. We determine that no term requires explicit construction
`in order to conduct properly our analysis of the asserted challenge.
`B. Covered Business Method Patent
`Section 18 of the AIA1 provides for the creation of a transitional
`program for reviewing covered business method patents. A “covered
`business method patent” is a patent that “claims a method or corresponding
`apparatus for performing data processing or other operations used in the
`practice, administration, or management of a financial product or service,
`except that the term does not include patents for technological inventions.”
`AIA § 18(d)(1); see 37 C.F.R. § 42.301(a). A patent need have only one
`claim directed to a covered business method to be eligible for review. See
`Transitional Program for Covered Business Method Patents—Definitions of
`Covered Business Method Patent and Technological Invention, 77 Fed. Reg.
`48,734, 48,736 (Aug. 14, 2012) (“CBM Rules”) (Comment 8).
`Based on the record before us, we are apprised of no reason to change
`the determination in our Institution Decision that at least claim 1 of the ’374
`patent is directed to a covered business method. Inst. Dec. 11–16.
`1. Data Processing or Other Operations used in a Financial
`Product or Service
`Petitioner contends that “the ’374 patent claims expressly require the
`performance of a financial transaction, e.g., by ‘facilitating trade order entry’
`through steps including ‘receiving market data for a commodity,’ and
`‘setting a price and sending the trade order to the electronic exchange.’” Pet.
`
`
`1 Leahy-Smith America Invents Act, Pub. L. No. 112–29, 125 Stat. 284, 329
`(2011) (“AIA”).
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`17 (citing claim 1 of the ’374 patent). Based on this record, we agree with
`Petitioner that these activities are financial in nature.
`Patent Owner does not dispute that the claims are directed to a
`financial product or service and, instead, contends that the claims are not
`directed to “data processing” or “other operations” of the financial product
`or service. PO Resp. 62–70. Patent Owner’s contentions are unpersuasive.
`Claim 1 encompasses processing financial data associated with a
`commodity and processing financial data for sending a trade order for a
`commodity to an exchange. See Ex. 1001, 4:60–64 (“The present invention
`processes this information and maps it . . . to a screen.”); 10:52–54 (“[t]he
`process for placing trade orders using the Mercury display”). This
`processing of financial data is used in the practice, administration, or
`management of a commodity, which is a financial product, and in the
`practice, administration, or management of electronic trading with an
`exchange, which is a financial service or activity.
`Even if there is some disagreement as to whether claim 1 includes
`“data processing,” there appears to be no disagreement that at least the steps
`noted above are operations used in the practice, administration, or
`management of a commodity or trading a commodity on an electronic
`exchange. See PO Resp. 66–70 (discussing only whether the ’374 patent
`claims “data processing”). The ’374 patent, therefore, at least claims “other
`operations used in the practice, administration, or management of a financial
`product or financial service” (AIA § 18(d)(1)).
`Patent Owner additionally contends that the Legislative History
`confirms that the claimed invention is not a covered business method. PO
`Resp. 74–77. We are not persuaded by Patent Owner’s argument. The
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`language of the AIA, as passed, does not include an exemption for all user
`interfaces for trading commodities from covered business method patent
`review. See Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 1381–82
`(Fed. Cir. 2016) (extra-statutory sources are not persuasive when the plain
`words of the statute do not support such additional interpretive phrases).
`Each patent has to be evaluated individually to determine if it is eligible for
`a covered business method patent review. A determination of whether a
`patent is eligible for a covered business method patent review under the
`statute is made on a case-by-case basis on the facts of each case. 37 C.F.R.
`§ 42.301(b).
`For the reasons stated above, and based on the particular facts of this
`proceeding, we conclude that the ’374 patent “claims a method or
`corresponding apparatus for performing data processing or other operations
`used in the practice, administration, or management of a financial product or
`service” and meets that requirement of § 18(d)(1) of the AIA.
`2. Exclusion for Technological Inventions
`To determine whether a patent is for a technological invention, we
`consider “whether the claimed subject matter as a whole recites a
`technological feature that is novel and unobvious over the prior art; and
`solves a technical problem using a technical solution.” 37 C.F.R.
`§ 42.301(b).
`The following claim drafting techniques, for example, typically do not
`render a patent a “technological invention”:
`(a) Mere recitation of known technologies, such as computer
`hardware, communication or computer networks, software,
`memory, computer-readable storage medium, scanners, display
`devices or databases, or specialized machines, such as an ATM
`or point of sale device.
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`(b) Reciting the use of known prior art technology to accomplish
`a process or method, even if that process or method is novel and
`non-obvious.
`(c) Combining prior art structures to achieve the normal,
`expected, or predictable result of that combination.
`Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,763–64 (Aug.
`14, 2012).
`Both prongs must be satisfied in order for the patent to be excluded as
`a technological invention. See Versata Dev. Grp., Inc. v. SAP Am., Inc.,
`793 F.3d 1306, 1326–27 (Fed. Cir. 2015).
`Petitioner contends that rather than reciting a technical feature that is
`novel or unobvious over the prior art, the claims of the ’374 patent generally
`recite trading software that is implemented on a conventional computer.
`Pet. 19–22. Petitioner additionally asserts that the claims of the ’374 patent
`do not fall within § 18(d)(1)’s exclusion for “technological inventions”
`because the ’374 patent does not solve a technical problem using a technical
`solution. Pet. 22–24. Patent Owner disagrees (PO Resp. 71–74), but fails to
`explain how the claimed subject matter recites a technological feature that is
`novel and unobvious over the prior art or solves a technical problem using a
`technical solution.
`We are persuaded by Petitioner’s contentions that at least claim 1 of
`the ’374 patent does not recite a novel and non-obvious technological
`feature. The specification of the ’374 patent treats as well-known all
`potentially technological aspects of the claims. For example, the ’374 patent
`discloses that its system can be implemented “on any existing or future
`terminal or device” (Ex. 1001, 4:4–7), each of which is known to include a
`display, and discloses that the input device can be a mouse (id. at 4:8–11),
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`which is a known input device. The ’374 patent further discloses that “[t]he
`scope of the present invention is not limited by the type of terminal or device
`used.” Id. at 4:7–8. The ’374 patent explains that the programming
`associated with the GUI is insignificant. See, e.g., Ex. 1001, 4:60–67
`(explaining that the “present invention processes [price, order, and fill]
`information and maps it through simple algorithms and mapping tables to
`positions in a theoretical grid program” and “[t]he physical mapping of such
`information to a screen grid can be done by any technique known to those
`skilled in the art”).
`Petitioner notes that the ’374 patent “purports to minimize the risk of
`the market price changing before the trade is executed, such that the trader
`‘misses the price.’” Pet. 22 (citing Ex. 1001, 2:57–59; 3:2–4). Petitioner
`argues that “contending with price fluctuations in a market is not a
`technological problem.” Id. Petitioner contends that “the ’374 patent does
`not offer a technical solution” because “[i]t does not claim a more accurate
`mouse or a computer that responds faster.” Id. at 23.
`We are persuaded that the ’374 patent does not solve a technical
`problem with a technical solution. As written, claim 1 requires the use of
`only known technology. Moreover, we do not see how claim 1, for example,
`even solves the problem alleged by Patent Owner (i.e., missing an intended
`price). See, e.g., Ex. 2169 ¶ 77. Given this, we determine that at least claim
`1 does not solve a technical problem using a technical solution and at least
`claim 1 does not satisfy the second prong of 37 C.F.R. § 42.301(b).
`
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`3. Conclusion
`In view of the foregoing, we conclude that the ’374 patent is a covered
`business method patent under AIA § 18(d)(1) and is eligible for review
`using the transitional covered business method patent program.
`C. Section 101 Patent-Eligible Subject Matter
`Petitioner challenges claims 1–36 as directed to patent-ineligible
`subject matter under 35 U.S.C. § 101. Pet. 28–50. Patent Owner disagrees.
`PO Resp. 12–62.
`Under 35 U.S.C. § 101, we must first identify whether an invention
`fits within one of the four statutorily provided categories of patent-
`eligibility: “processes, machines, manufactures, and compositions of
`matter.” Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 713–14 (Fed. Cir.
`2014).
`There is no dispute that claims 1–35 fit within one of the categories of
`patent-eligibility. Petitioner asserts, however, that “claim 36 of the ’374
`patent is invalid because it encompasses subject matter that does not fall into
`any of the four statutory classes of § 101.” Pet. 48. Claim 36 recites a
`“computer readable medium having stored therein instructions.” Petitioner
`contends that “the BRI of ‘medium,’ as used in claim 36 of the ’374 patent
`. . . is broad enough to cover substances ‘such as wires, air, or a vacuum’
`through which transitory electrical signals can propagate.” Pet. 49 (citing In
`re Nuijten, 550 F.3d 1346, 1352 (Fed. Cir. 2007)); Pet. Reply 24.
`Patent Owner responds that there is no evidence to support
`Petitioner’s contention that one skilled in the art would have understood
`“computer readable medium having stored therein instructions” to
`encompass a signal at the time of the invention. PO Resp. 61–62. Petitioner
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`responds to Patent Owner’s contentions by simply asserting that “the Board
`correctly found that the BRI of a ‘computer readable medium’ encompasses
`transitory media” and “[n]othing in the specification limits a broad
`application of this definition.” Pet. Reply 24.
`Petitioner’s response is unhelpful. In our Institution Decision, we
`explicitly noted that our construction was preliminary and specifically
`indicated that “[t]he broadest reasonable interpretation, in light of the
`specification, of ‘stored’ is an issue that requires further development of the
`record.” Inst. Dec. 9. In its Reply, Petitioner cites no evidence to rebut
`Patent Owner’s contentions regarding how one skilled in the art would have
`understood the claim language at issue at the time of the invention. In fact,
`Petitioner does not even acknowledge those contentions. At oral hearing,
`when asked why no evidence was provided in this regard, Petitioner had no
`explanation other than “it would be difficult . . . because this is a term of art
`in the patent field” and “you can[not] go to an IEEE dictionary and find
`necessarily a dictionary definition that would be helpful here.” Tr. 71:4–10.
`Accordingly, on this record, which is absent any further evidence or
`meaningful argument from Petitioner, we are not persuaded that at the time
`of the invention one skilled in the art would have understood “computer
`readable medium having stored therein instructions” as encompassing
`transitory, propagating signals.
`Nevertheless, we are persuaded that claims 1–36 do not recite patent-
`eligible subject matter for the reasons that follow.
`1. Abstract Idea
`Section 101 “contains an important implicit exception [to subject
`matter eligibility]: Laws of nature, natural phenomena, and abstract ideas
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`are not patentable.” Alice Corp. Pty. Ltd. v. CLS Bank. Int’l, 134 S. Ct.
`2347, 2354 (2014) (quoting Assoc. for Molecular Pathology v. Myriad
`Genetics, Inc., 133 S. Ct. 2107, 2116 (2013)). In Alice, the Supreme Court
`reiterated the framework set forth previously in Mayo Collaborative Services
`v. Prometheus Labs., Inc., 566 U.S. 66, 70–71 (2012), “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.
`Claim 1 is “[a] method for facilitating trade order entry” and recites
`“receiving . . . market data,” “identifying . . . sequential price levels,”
`“displaying . . . graphical locations along an axis,” “mapping . . . the . . .
`sequential price levels to the . . . graphical locations,” and “setting a price
`and sending the trade order.”2 In our Institution Decision, we specifically
`set forth our understanding of the limitations noted above, explaining that
`claim 1 “do[es] not require that the graphical locations display the price
`levels that are mapped to them, any other information, or even any
`indication as to which of those graphical locations correspond to bids and
`which correspond to asks.” Inst. Dec. 10–11. We further explained that,
`based on our understanding of the claim language, the “claims provide [no]
`indication to a user of market information, such as price, order quantity, or
`order type” and “the graphical locations simply could be ‘black boxes’ with
`price values associated with them, and no information provided to the user
`
`2 The following discussion addresses claim 1, with the understanding that
`the discussion applies equally to claim 36, which recites a computer readable
`medium having instructions to execute a method substantially the same as
`the method of claim 1.
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`indicating that price value, the order quantity, or the order type.” Id. Patent
`Owner does not dispute our understanding of the claims, which, as noted
`above, was set forth explicitly in our Institution Decision.
`“The ‘abstract idea’ step of the inquiry calls upon us to look at the
`‘focus of the claimed advance over the prior art’ to determine if the claim’s
`‘character as a whole’ is directed to excluded subject matter.’” Affinity Labs
`of Texas v. DirectTV, LLC, 838 F.3d 1253, 1257 (Fed. Cir. 2016) (citations
`omitted). There is no definitive rule to determine what constitutes an
`“abstract idea.” Rather, the Federal Circuit has explained that “both [it] and
`the Supreme Court have found it sufficient to compare claims at issue to
`those claims already found to be directed to an abstract idea in previous
`cases.” Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1334 (Fed. Cir.
`2016); see also Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d 1288,
`1294 (Fed. Cir. 2016) (explaining that, in determining whether claims are
`patent-eligible under § 101, “the decisional mechanism courts now apply is
`to examine earlier cases in which a similar or parallel descriptive nature can
`be seen—what prior cases were about, and which way they were decided”).
`As explained in our Institution Decision, “these claims are drafted at such a
`high level of abstraction that it is difficult to imagine the bounds of their
`application.” Inst. Dec. 11.
`Petitioner argues that the challenged claims “are directed to the
`abstract, fundamental economic practice of trading based on displayed
`market information and user input.” Pet. 29. In our Institution Decision, we
`specifically indicated that “the concept embodied by the majority of the
`limitations appears to be even broader than that suggested by Petitioner,”
`stating that independent claims 1 and 36 are directed to “the abstract idea of
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`receiving user input and placing a trade order.” Inst. Dec. 19. Patent Owner
`responds to our characterization of the claims by alleging, generally, and
`without meaningful explanation, that “the ’374 patent does not simply claim
`its invention to be the concept of . . . ‘receiving user input and placing a
`trade order,’ the PTAB’s purported abstract idea.” PO Resp. 2 (citing Inst.
`Dec. 19); see also id. at 51 (“Nor are the claims directed to ‘receiving user
`input and placing a trade order,’ the PTAB’s purported abstract idea.”
`(citing Inst. Dec. 19)).
`As noted above, claim 1 only minimally requires collecting and
`analyzing information and includes no requirement that any of that
`information is displayed. Even collecting, analyzing, and displaying
`information, by itself, however, does not remove claims from abstraction.
`See, e.g., Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353–54
`(Fed. Cir. 2016). To the extent claim 1 requires a GUI, it does so in the most
`basic sense, only requiring generic graphical locations that are selectable by
`a user. Claims that require a GUI are not automatically patent eligible.
`Affinity Labs, 838 F.3d at 1255–56; Apple, Inc., v. Ameranth, Inc., 842 F.3d
`1229, 1234 (Fed. Cir. 2016). In both Affinity Labs and Ameranth, the court
`determined that the claims were not directed to a particular way of
`programming or designing the software, but instead merely claim the
`resulting systems, and determined that the claims are not directed to a
`specific improvement in the way computers operate. Affinity Labs, 838 F.3d
`at 1260–61; Ameranth, 842 F.3d at 1241. The same is true here in that the
`claims are not directed to any particular way of programming or designing
`software, but merely claim the resulting system and not any specific
`improvement in the way a computer operates.
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`Patent Owner only discusses, generally, patent eligibility requirements
`under § 101, without explaining how that discussion applies to the specific
`claim limitations of the ’374 patent. See, e.g., PO Resp. 1–17, 23–33.
`Patent Owner, instead, continually alleges that the claims are directed to a
`specific graphical user interface. See, e.g., PO Resp. 1 (“The claims of the
`’374 patent are patent eligible because they are not directed to an “abstract
`idea,” but are instead directed to the specific structure, makeup, and
`functionality of a technological graphical user interface (“GUI”) tool that
`can be used for electronic order entry.”), 10 (“TT’s claims are directed to a
`specific implementation—that is, a specific GUI.”), 12 (“[T]he ’374 patent
`claims are patent eligible because they claim the construction of a specific
`GUI . . . .”), 23 (“TT’s claims set forth a particular way to construct a
`specific GUI with specific structure, makeup, and functionality.”), 27 (“The
`claims here are directed to constructing a GUI with a specific structure,
`makeup, and functionality that is both a specific means or method and a
`particular, practical implementation of an order entry interface.”).
`The only reference to specific claim limitations in the Patent Owner
`Response related to whether the claim 1 is directed to an abstract idea is a
`reproduction of the claim language (PO Resp. 18–22), followed by
`conclusory statements, such as “because of this structure, makeup, and
`functionality, the mapping of the plurality of sequential price levels does not
`change at a time when at least one of the current highest bid price and the
`current lowest ask price changes, providing the benefits described in the
`specification” (id. at 22). Patent Owner alleges that “[t]his specific
`combination of display elements and features differed from the conventional
`GUIs at the time of the invention and addressed a specific problem created
`
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`by these conventional GUIs, namely, improving accuracy without sacrificing
`speed and improving usability.” Id. at 28.
`Although Patent Owner provides a table allegedly illustrating how
`claim 1 “is constructed to display and function,” that characterization of the
`“structure, makeup, and functionality” of the claims is conclusory and
`inaccurate. PO Resp. 19–21 (citing Ex.1001, 11:39–12:5; Ex. 2168 ¶ 42).
`For example, Patent Owner contends that “[t]he structure of each graphical
`location is aligned along the price axis structure on the visual display” and
`“[e]ach graphical location functions such that it is selectable . . . to send a
`trade order . . . at the price aligned with the selected graphical location.” Id.
`at 20 (emphasis added). The testimony from Mr. Gould Bear cited by Patent
`Owner is simply a reproduction of the table spanning pages 19–22 of the
`Patent Owner Response. Ex. 2168 ¶ 42. Claim 1, however, recites “an
`axis,” not “a price axis,” and does not require any display of price
`information or any other specific type of information.3
`As for Patent Owner’s arguments that we should follow the Federal
`Circuit’s guidance in CQG (See PO Add’l Sub. 1–5), comparing the claims
`of the patents involved in CQG with those in the ’374 patent is not
`particularly helpful here. Although the ’374 patent shares a specification
`with the patents at issue in CQG, the claims at issue in the ’374 patent are
`much broader. In its additional submission, Patent Owner contends that “the
`’374 patent claims are in some respects narrower than the claims of the ’132
`and ’304 patents,” which were at issue in CQG. PO Add’l Sub. 5. Patent
`
`3 Patent Owner clearly knew how to claim a price axis, but chose not to
`limit the claims in that manner in the ’374 patent. See Ex. 2111, 12:44
`(earlier filed patent claiming a “price axis” in the same chain of continuation
`filings that resulted in the ’374 patent).
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`Owner reproduces portions of claim 1 from the ’374 patent that recite the
`features of “setting a price and sending the trade order to the electronic
`exchange” in that claim. Id. Patent Owner offers no explanation, however,
`as to how that claim language makes claim 1 of the ’374 patent narrower, in
`a meaningful way, than what is recited in the ’132 or ’304 patent claims.
`The ’304 patent, for example, recites a similar limitation (“setting a plurality
`of parameters for a trade order . . . and sending the trade order to the
`electronic exchange”) as well as numerous other limitations not found in
`claim 1 of the ’374 patent.
`Accordingly, comparing the claims at issue in this proceeding with
`those addressed in CQG is not particularly helpful here, particularly when
`the court implied that even those narrower claims of the ’132 and ’304
`patents are on the line between patent eligibility and ineligibility (see CQG,
`2017 WL 192716, at *4 (noting the “close question[] of eligibility”)).
`As explained above, claim 1 is simply directed to receiving user input
`to send a trade order. There is no dispute that receiving user input and
`placing a trade order, a fundamental economic practice, is an abstract idea.
`2. Inventive Concept
`Next we turn to “the elements of each claim both individually and ‘as
`an ordered combination’ to determine whether th