Trials@uspto.gov
`Tel: 571-272-7822
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` Paper 16
`
`
` Entered: January 24, 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.
`____________
`
`CBM 2016-00087
`Patent 7,412,416 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`
`
`
`
`
`
`
`
`
` Paper 16
`
`
` Entered: January 24, 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.
`____________
`
`CBM 2016-00087
`Patent 7,412,416 B2
`_______________
`
`
`Before SALLY C. MEDLEY, MEREDITH C. PETRAVICK, and
`JEREMY M. PLENZLER, Administrative Patent Judges.
`
`MEDLEY, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Petitioner’s Request for Rehearing
`37 C.F.R. § 42.71
`
`
`
`
`
`
`
`
`CBM2016-00087
`Patent 7,412,416 B2
`
`
`INTRODUCTION
`IBG LLC, Interactive Brokers LLC, Tradestation Group, Inc., and
`Tradestation Securities, Inc., (“Petitioner”) filed a Request for Rehearing of
`the Decision to Institute (Paper 11, “Dec.”) a covered business method
`patent review of claims 1–24 of U.S. Patent No. 7,412,416 B2 (Ex. 1001,
`“the ’416 patent”). Paper 14, “Req. Reh’g”. For the reasons that follow, the
`Request for Rehearing is denied.
`STANDARD OF REVIEW
`A party requesting rehearing bears the burden of showing that the
`decision should be modified. 37 C.F.R. § 42.71(d). The party must identify
`specifically all matters we misapprehended or overlooked, and the place
`where each matter was previously addressed in a motion, an opposition, or a
`reply. Id. When reconsidering a decision on institution, we review the
`decision for an abuse of discretion. 37 C.F.R. § 42.71(c). An abuse of
`discretion may be determined if a decision is based on an erroneous
`interpretation of law, if a factual finding is not supported by substantial
`evidence, or if the decision represents an unreasonable judgment in weighing
`relevant factors. Star Fruits S.N.C. v. U.S., 393 F.3d 1277, 1281 (Fed. Cir.
`2005); Arnold P’ship v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004); In re
`Gartside, 203 F.3d 1305, 1315-16 (Fed. Cir. 2000).
`
`ANALYSIS
`
`Petitioner requests rehearing of our determination (Dec. 23) that the
`Petition does not demonstrate that claims 1–24 are more likely than not
`
`
`
`2
`
`
`
`CBM2016-00087
`Patent 7,412,416 B2
`
`unpatentable under 35 U.S.C. § 103 over TSE1, Bay2, and Subler3. Req.
`Reh’g 1. In particular, Petitioner contends that we misapprehended or
`overlooked the principles of obviousness law that (1) obviousness cannot be
`defeated by attacking references individually where the invalidity grounds
`are based on combinations of references, and (2) a determination of
`obviousness based on teachings from multiple references does not require an
`actual, physical substitution of elements or that the inventions in the
`references be physically combinable. Id. at 1–7.
`We are not persuaded by Petitioner’s arguments. At the outset, the
`arguments are premised on a disagreement of our decision and not that we
`misapprehended or overlooked matters addressed in the Petition, which is
`improper. Id. at 1–6. In any event, we disagree with Petitioner that our
`decision “rejected the proposed combination of TSE and Bay” because Bay
`does not teach a graphical user interface. Id. at 3. Rather, as we stated in the
`Decision, “it is unclear what from Bay and what from TSE are proposed to
`be combined.” Dec. 21. As an example of how the Petition was not clear,
`we noted that the Petition indicated Bay describes displaying a chart “on a
`graphical user interface,” without explaining how that was so. Id. at 20–21.
`It was incumbent upon Petitioner to explain sufficiently what teaching from
`Bay Petitioner was relying on and what teaching from TSE Petitioner was
`relying to make its case, and to support such arguments with sufficient
`
`
`1 TOKYO STOCK EXCHANGE OPERATION SYSTEM DIVISION, FUTURES/OPTION
`PURCHASING SYSTEM TRADING TERMINAL OPERATION GUIDE (1998) (Ex.
`1016) (“TSE”).
`2 U.S. Patent No. 5,347,452 (issued Sept. 13, 1994) (Ex. 1042) (“Bay”).
`3
`
`
`
`
`
`CBM2016-00087
`Patent 7,412,416 B2
`
`record evidence.
`Petitioner argues that the Decision improperly attempts to force-fit
`Bay’s chart into TSE’s GUI. Req. Reh’g 4–6. Petitioner’s arguments are
`misplaced. As explained in the Decision,
`[I]t is unclear what from Bay and what from TSE are proposed
`to be combined. In particular, Petitioner asserts that it would
`have been obvious to a person of ordinary skill in the art to
`combine Bay’s chart having a vertical axis of price values and a
`horizontal axis of time with TSE’s GUI. Pet. 52. Facially, this
`would lead one to believe that the graphs and displays of TSE
`are not proposed as being maintained within the combination,
`but rather that Bay’s chart would substitute for the TSE display.
`We understand from other parts of the Petition, however, that
`Petitioner is relying on TSE for its description of having a
`vertical axis of price values, e.g., retaining TSE’s price axis.
`See, e.g., Pet. 51, 56, 62. Thus, the proposed combination is not
`clear.
`
`
`Dec. 21.
`Thus, as seen from above, the Petition was not clear. We did not
`attempt to force-fit Bay’s chart into TSE’s GUI. Rather, we attempted to
`ascertain Petitioner’s position to no avail. Accordingly, we determined that
`the Petition did not demonstrate that claims 1–24 are more likely than not
`unpatentable under 35 U.S.C. § 103 over TSE, Bay, and Subler. Again, it
`was incumbent upon Petitioner to make its case, not for the Board to make it
`for Petitioner. 37 C.F.R. § 42.20(c).
`For the foregoing reasons, Petitioner’s Request for Rehearing is
`denied.
`
`
`3 U.S. Patent No. 5,646,992 (issued July 8, 1997) (Ex. 1020) (“Subler”).
`4
`
`
`
`
`
`CBM2016-00087
`Patent 7,412,416 B2
`
`
`PETITIONER:
`
`Robert E. Sokohl
`Lori A. Gordon
`Richard M. Bemben
`STERNE, KESSLER, GOLDSTEIN & FOX
`rsokohl-PTAB@skgf.com
`lgordon-PTAB@skgf.com
`rbemben-PTAB@skgf.com
`PTAB@skgf.com
`
`John C. Phillips
`FISH & RICHARDSON P.C.
`ptabinbound@fr.com
`
`PATENT OWNER:
`
`Erika H. Arner
`Joshua L. Goldberg
`Kevin Rodkey
`Rachel L. Emsley
`Cory C. Bell
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`erika.arner@finnegan.com
`joshua.goldberg@finnegan.com
`kevin.rodkey@finnegan.com
`cory.bell@finnegan.com
`
`Michael D. Gannon
`Leif R. Sigmond, Jr.
`Jennifer M. Kurcz
`MCDONNELL BOEHNEN HULBERT & BERGHOFF LLP
`gannon@mbhb.com
`sigmond@mbhb.com
`kurcz@mbhb.com
`
`
`
`5
`
`
`
`CBM2016-00087
`Patent 7,412,416 B2
`
`Steven F. Borsand
`Jay Q. Knobloch
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`tt-patent-cbm@tradingtechnologies.com
`jay.knobloch@tradingtechnologies.com
`
`
`
`6
`
`
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