Paper No. ____
` Filed: March 17, 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.
`
`Petitioners
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`
`Case CBM2016-00051
`
`U.S. Patent 7,904,374
`_________________
`
`PATENT OWNER’S ADDITIONAL SUBMISSIONS
`
`
` Filed: March 17, 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.
`
`Petitioners
`v.
`
` TRADING TECHNOLOGIES INTERNATIONAL, INC.
`
`Patent Owner
`_________________
`
`Case CBM2016-00051
`
`U.S. Patent 7,904,374
`_________________
`
`PATENT OWNER’S ADDITIONAL SUBMISSIONS
`
`
`
`Pursuant to the Board’s March 10, 2017 Order (Paper 28), Patent Owner
`
`respectfully submits this additional submission addressing Trading Technologies
`
`International, Inc. v. CQG, Inc. et al. (“CQG”), No. 2016-1616, 2017 WL 192716
`
`(Fed. Cir. Jan. 18, 2017).
`
`U.S. Patent 7,904,374 (“the ’374 patent”) is a continuation of U.S. Patent
`
`No. 6,772,132 (“the ‘132 patent”) and shares the same specification as U.S. Patent
`
`No. 6,677,304 (“the ‘304 patent”).
`
`I.
`
`CQG Sets Forth The Proper § 101 Analysis for the ‘374 Patent
`
`In TT v. CQG, the Federal Circuit considered and fully analyzed GUI claims
`
`set forth in U.S. Patent No. 6,772,132 (“the ‘132 patent”) and U.S. Patent No.
`
`6,677,304 (“the ‘304 patent”). CQG, 2017 WL 192716 at *4. The Federal Circuit
`
`found eligible, under both steps of Alice, patents that claimed “a specific,
`
`structured graphical user interface paired with a prescribed functionality directly
`
`related to the graphical user interface’s structure that is addressed to and resolves a
`
`specifically identified problem in the prior state of the art.” Id. at *3.
`
`A. The ‘374 Patent is Not “Directed To” an Abstract Idea
`
`In CQG, the Federal Circuit focused the analysis on the claim elements that
`
`provided structure, make-up, and functionality and the improvement of these claim
`
`elements over the prior systems. Id. As such, it would be improper for the Board to
`
`1
`
`
`
`ignore the structure, makeup, and functionality recited in the ‘374 patent and/or the
`
`problem that the claimed invention solves under the first step of the Alice test.
`
`1.
`
`Structure, Makeup, and Functionality
`
`Like the patents in CQG, the ‘374 claims are directed to the structure,
`
`makeup, and functionality of a GUI tool and claim “a specific, structured graphical
`
`user interface paired with a prescribed functionality directly related to the graphical
`
`user interface’s structure.” CQG, 2017 WL 192716 at *3. The claims of the ‘374
`
`patent are “directed to” a particular structure, makeup, and functionality of a GUI.
`
`POR at 23-41. A side-by-side comparison of the claimed elements of claim 1 from
`
`the ‘304 patent and claim 1 of the ‘374 patent illustrate the similarities. The ‘374
`
`patents recite a specific implementation for constructing a GUI tool. That is, the
`
`method of the ‘374 patent explains the mechanism for constructing or associating
`
`the various structure elements with other structural elements and the functionality
`
`associated with these various elements. For example, like the ‘304 patent, the ‘374
`
`discusses the GUI tool in terms of displaying 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. The ‘374 patent also recites setting a price and sending the trade order to
`
`the electronic exchange in response to receiving by the computing device
`
`2
`
`
`
`commands based on user actions consisting of: (1) 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. The level of specificity between the ‘374 patent and ‘304
`
`patent is similar.
`
`At step one, the Federal Circuit is careful to articulate what the claims are
`
`directed to with enough specificity to ensure the step one inquiry is
`
`meaningful. The above mentioned comparison shows that the level of specificity
`
`in ‘374 patent is nearly identical to the level of specificity in the ‘304 patent.
`
`Accordingly, the ‘374 patent includes the requisite level of specificity and the
`
`claimed elements should not be overgeneralized or ignored. The Federal Circuit
`
`has found that similar claim elements are meaningful and should be considered.
`
`2.
`
`Solves a Problem with Prior Systems
`
`In CQG, the Federal Circuit relied on the fact that the ‘132 and ‘304 patents
`
`solved an order entry problem with prior GUI systems. Id. at *2-4. Further, the
`
`Federal Circuit found that “the claimed subject matter is directed to a specific
`
`improvement to the way computers operate, for the claimed graphical user
`
`interface method imparts a specific functionality to a trading system directed to a
`
`specific implementation of a solution to a problem in the software arts.” Id. at *4
`
`(internal quotations omitted). The improvements for the ‘374 patent in speed,
`
`3
`
`
`
`visualization, and usability (Ex. 1001, 1:59-62, 2:39-65, 6:6-64, 7:24-26, 8:26-51,
`
`10:9-32) are akin to the ‘132 and ‘304 patents’ improvements in speed, accuracy,
`
`and usability, and are likewise technological in nature. That is, in both instances,
`
`the patents claim improved GUIs that provide for better user interaction—
`
`something the Federal Circuit has found technological in character.
`
`
`
`3.
`
`Inventive Concept
`
`In CQG, the combined claim elements provided an inventive concept:
`
`“specific structure and concordant functionality of the [GUI],” e.g., displaying bid
`
`and offer indicators relative to a price axis, setting a default quantity, and locations
`
`along the price axis, selected to set a desired price for an order. See id. at *3. Here,
`
`the claimed combination is unconventional and not routine. POR at 31-35. In
`
`CQG, the Federal Circuit found that the recitation of a “static price axis” was
`
`enough to provide an inventive concept. Id. The ’374 patent easily surpasses this
`
`threshold with the recitation of a plurality of other claimed elements. POR at 10-
`
`22.
`
`II. Board’s Prior Analysis
`
` In CBM2015-00179, the Board distinguished CQG on the basis that the
`
`“claims and specification before us are much broader” than the ‘132/’304 patents,
`
`and concluded that that with respect to CQG, “the [Federal Circuit] implied that
`
`even those narrower claims are on the line between patent eligibility and
`
`4
`
`
`
`ineligibility.” IBG LLC et al. v. Trading Technologies Int’l, Inc., CBM2015-00179,
`
`Paper 141, p. 22 n.12 (P.T.A.B. Feb. 17, 2017).
`
`First, the Board’s CQG analysis is flawed because (1) it depended on dicta
`
`that is not even directed to the ‘132 and ‘304 cases, (2) CQG found patent
`
`eligibility under both parts of Alice, (3) CQG was decided promptly after oral
`
`argument, (4) CQG was a unanimous decision, and (5) it was designated non-
`
`precedential (meaning “does not add significantly to the body of law.” Fed. Cir. R.
`
`32.1(b)). None of these indicates a close case “on the line between patent
`
`eligibility and ineligibility” and it is clear the Court in CQG did not need the
`
`additional understanding flowing from the other patentability criteria.
`
` Secondly, CQG cannot be distinguished based on breadth of the claims from
`
`the claims of the ‘374 patent because the ‘374 patent claims are in some respects
`
`narrower than the claims of the ‘132 and ‘304 patents. For example, the claimed
`
`invention of the ‘374 patent recites 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: (1) 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., while including a specific structure and concordant
`
`functionality.
`
`5
`
`
`
`
`
`Date: March 17, 2017
`
`Respectfully submitted,
`
`MCDONNELL BOEHNEN HULBERT &
`BERGHOFF LLP
`
`/Jennifer M. Kurcz/
`
`Jennifer M. Kurcz,
`Back-Up Counsel, Reg. No. 54,481
`
`Counsel for Patent Owner
`
`300 South Wacker Drive
`Chicago, Illinois 60606
`(312) 913-0001
`
`
`
`
`6
`
`
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a copy of the foregoing Patent
`
`Owner’s Additional Submission was served on March 17, 2017, via email directed
`
`to counsel of record for the Petitioners at the following:
`
`John C. Phillips
`phillips@fr.com
`
`Kevin Su
`su@fr.com
`
`Michael T. Rosato
`mrosato@wsgr.com
`
`CBM41919-0013CP1@fr.com
`
`PTABInbound@fr.com
`
`
`
`Dated: March 17, 2017
`
`By:
`
`
`
`
`
`
`
`
`
`
`
`
`/Cole B. Richter/
`Cole B. Richter,
`Counsel for Patent Owner
`Reg. No. 65,398
`
`
`
`7
`
`
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