Ex Parte 7627519 et al

Patent Trials and Appeals Board

Oct 18, 2018

90013597 - (D) (P.T.A.B. Oct. 18, 2018)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
90/013,597 09/30/2015 7627519 034686.005 3637
13992 7590 10/19/2018
Polsinelli PC Special Reexam Group
1000 Louisiana Street, Fifty-Third Floor
Houston, TX 77002
EXAMINER
REICHLE, KARIN M
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/19/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TRADING TECHNOLOGIES INTERNATIONAL, INC.,
Patent Owner and Appellant
____________

Appeal 2018-003801
Reexamination Control 90/013,597
Patent 7,627,519 B2
Technology Center 3900
____________

Before JOHN A. JEFFERY, MARC S. HOFF, and STEPHEN C. SIU,
Administrative Patent Judges.

SIU, Administrative Patent Judge

DECISION ON APPEAL

This proceeding arose out of a request for ex parte re-examination of
U.S. Patent No. 7,627,519 B2 (“the ’519 patent”) to Michael J. Burns,
entitled Method, Apparatus and Interface for Trading Multiple Tradeable
Objects, issued December 1, 2009. An oral hearing was conducted on June
20, 2018.
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Patent Owner appeals under 35 U.S.C. § 134 and 306 from the
Examiner’s rejection of claims 1–18. App. Br. 2.1 We have jurisdiction
under 35 U.S.C. § 6(b).
The disclosed invention relates generally to electronic trading of
tradeable objects. See Spec 1:15–17.
Claim 1 reads as follows:

1. A method for displaying market information relating
to two tradeable objects being traded on at least one electronic
exchange using a graphical user interface and a user input device
and having preset parameters for trade orders, the method
comprising:
dynamically displaying, via a computing device, a first
combined quantity indicator at a location corresponding to a first
price level of a plurality of price levels on a common static price
axis, the first combined quantity indicator representing quantity
associated with an order to buy a first tradeable object and an
order to buy a second tradeable object pending in an order book of
at least one electronic exchange, wherein the first tradeable object
and the second tradeable object are different tradeable objects;
dynamically displaying, via the computing device, a second
combined quantity indicator at a location corresponding to a
second price level on the common static price axis, the second
combined quantity indicator representing quantity associated with
an order to sell the first tradeable object and an order to sell the
second tradeable object pending in the order book of the at least
one electronic exchange;

1 Appeal Brief, filed October 12, 2017 (“App. Br.”).
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displaying, via the computing device, an order entry region
comprising a plurality of locations corresponding to the plurality
of price levels along the common static price axis;
receiving, via a user input device of the computing device, a
selection of one of the plurality of locations corresponding to a
particular price level by a single action of the user input device;
allocating, via the computing device in response to the
selection, a preset default order quantity according to a quantity
allocation rule to at least one trade order for i) the first tradeable
object, ii) the second tradeable object, or iii) both the first
tradeable object and the second tradeable object, to determine an
order quantity for each of the at least one trade order;
sending the at least one trade order to the at least one
electronic exchange for the first tradeable object, the second
tradeable object, or both the first tradeable object and the second
tradeable object according to the quantity allocation rule that is
used to allocate the preset default order quantity; and
displaying, via the computing device, a working quantity
region for displaying at least one entered order indicator in a
location corresponding to the particular price level along the
common static price axis, wherein the at least one entered order
indicator represents at least one user's trade order working at the
particular price level designated with the at least one entered order
indicator, wherein the at least one entered order indicator
comprises at least one of: a first entered order indicator
representing a working trade order for a quantity allocated to the
first tradeable object, and a second entered order indicator
representing a working trade order for a quantity allocated to the
second tradeable object.

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Patent Owner appeals the Examiner’s rejection of claims 1–18 under
35 U.S.C. § 102 as anticipated by Kemp2 and under 35 U.S.C. § 103 as
unpatentable over Friesen3 and MJT4. App. Br. 7.5

ISSUE
Did the Examiner err in rejecting claims 1–18?

ANALYSIS
Obviousness – Friesen and MJT
Claim 1 recites allocating an order quantity according to a quantity
allocation rule to at least one trade order for i) the first tradeable object, ii)
the second tradeable object, or iii) both the first tradeable object and the
second tradeable object, to determine an order quantity for each of the at
least one trade order. Patent Owner argues that Friesen fails to disclose this
feature. App. Br. 38–39.
The Examiner finds that Friesen discloses this feature. Final Rej. 30–
31. As the Examiner points out, Friesen discloses a “user interface” that

2 US Patent Publication No, 2003/0200167 A1, Pub. Date Oct. 23, 2003
(“Kemp”).
3 WO 01/16852 A2, Publication Date Mar. 8, 2001 (“Friesen”).
4 WO 95/06918, Publication Date Mar. 9, 1995 (“MJT”).
5 The Examiner withdraws the rejection of claims 1–18 under 35 U.S.C.
§ 112, second paragraph and under 35 U.S.C. § 102 as anticipated by
Friesen. Ans. 4.
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“displays information regarding a plurality of semi-fungible goods on a
single screen” such that a trader may “add . . . orders for [an] item being
traded in the trading pit.” Friesen 4:4–5, 8:23–24. Friesen also discloses
that “every order includes . . . the quantity . . . specific to the order” and may
“specify[] a value and quantity.” Friesen 9:10–13, 25. In other words,
Friesen discloses first and second tradeable objects (i.e., “a plurality of semi-
fungible goods on a single screen”), an order placed by a trader for a
tradeable objects (i.e., an order for an item being traded), and allocating a
quantity for the order to a tradeable object (i.e., every order includes a
quantity specific to the order).
Patent Owner argues that Friesen discloses “order matching” but that
the “order matching” of Friesen is distinct from “allocating,” as recited in
claim 1. As Patent Owner indicates, claim 1 recites allocating an order
quantity to a trade order for a first tradeable object. Patent Owner also
argues that one of skill in the art would have broadly but reasonably
understood the term “allocate” to include “to distribute, to divide, to
apportion.” App. Br. 18. Even assuming that one of skill in the art would
have construed the term “allocate” broadly but reasonably in light of the
Specification to mean “distribute,” “divide,” or “apportion,” as Patent
Owner contends, Patent Owner does not explain sufficiently a difference
between “distributing” or “apportioning” a quantity in an order for a
tradeable object to the tradeable object. As discussed above, Friesen
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discloses an order that includes a quantity and “apportioning,” at least, the
quantity of the order to a tradeable object.
Patent Owner argues that “one of ordinary skill in the art at the time of
the invention would understand that the quantity of the order [as claimed] is
divided between an order for the first tradeable object and an order for the
second tradeable object” and that claim 1 requires “allocating (e.g., dividing,
distributing, etc.) the total quantity between the first and second tradeable
objects.” App. Br. 22, 26. Claim 1 recites allocating a quantity for a first
tradeable object, a second tradeable object, or both a first and second
tradeable object. Claim 1 does not also recite that the quantity of the order
must be divided between an order for the first and an order for the second
tradeable object or allocating the total quantity between the first and second
tradeable objects. We are not persuaded by Patent Owner’s argument.
MJT also discloses a “graphical user interface that allows the investor
to . . . enter orders” and that an order may contain a quantity. MJT 13:2–3,
23:25–30. MJT also confirms that it was known to one of skill in the art at
the time of the invention to allocate a quantity in an order to a tradeable
object (e.g., “. . . a sell order of 5,000 shares is sent for execution” – i.e., a
quantity of 5,000 shares is allocated to the tradeable object for execution).
MJT 23:25–28. In addition, MJT discloses that one of skill in the art would
have understood that the quantity in the order may be “split” (or allocated)
between a first and a second tradeable object – e.g., in a “sell order of 5,000
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shares . . . 3000 shares may be sent to Instinet . . . for sale and 2000 . . .
shares may be sent to CSE for sale.” MJT 23:25–30.
Patent Owner argues that MJT fails to disclose a “preset default order
quantity.” App. Br. 51. We are not persuaded by Patent Owner at least
because Patent Owner does not assert or demonstrate persuasively that the
combination of Friesen and MJT, on which the Examiner’s rejection is
based, also fails to disclose a “preset default order quantity,” as opposed to
MJT in isolation. In any event, we note that MJT discloses an order quantity
(e.g., 5,000 shares) that is preset (i.e., previously determined or determined
prior to placement of the order).
Patent Owner argues that MJT discloses “splitting” the order but that
such “splitting” is different from “allocating,” as recited in claim 1 because
MJT merely describes “that the user decides to send multiple individual
orders by setting the quantity and designating a routing for each individual
order.” App. Br. 52 (citing MJT 23:25–30, 37:6–19, 39:24–25, 50:4 – 51:8,
and 51:21–29). However, Patent Owner does not explain sufficiently how a
user placing an order for “5,000 shares” that is “split” between two tradeable
objects differs from “allocating” a quantity between two tradeable objects.
Indeed, the two concepts appear to be identical. In any event, as previously
discussed, Patent Owner does not demonstrate persuasively that claim 1, for
example, requires “allocating” a quantity between two tradeable objects. We
are not persuaded by Patent Owner’s arguments.
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We also agree with the Examiner that it would have been obvious to
one of skill in the art to have combined the known teachings of Friesen (e.g.,
providing a user interface to enable placing an order for a tradeable object)
with the known teachings of MJT (also disclosing a user interface to enable
placing an order for a tradeable object) to achieve the predictable and
expected result of a user interface to enable placing an order for a tradeable
object. “The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007)
Patent Owner argues that it would not have been obvious to one of
ordinary skill in the art to have combined the teachings of Friesen and MJT
“because the suggested combination would render at least one of Friesen and
MJT Holdings inoperative or unsatisfactory for its intended purpose.” App.
Br. 57. We are not persuaded by Patent Owner’s argument. As discussed
above, Friesen discloses an investor placing an order for a tradeable object in
a user interface. Friesen 4:4–5, 8:23–24; 9:10–13, 25. Likewise, MJT
discloses a “graphical user interface that allows the investor to . . . enter
orders” and that an order may contain a quantity. MJT 13:2–3, 23:25–30. In
other words, both Friesen and MJT disclose a user interface through which a
user may place an order (including a quantity) for a tradeable object. Patent
Owner does not explain how the “intended purpose” of Friesen (of providing
a user interface through which a user may place an order for a tradeable
object) would supposedly be rendered inoperable or unsatisfactory when
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combined with the teachings of MJT, which discloses the same “intended
purpose” of providing a user interface for placing orders for a tradeable
object.
Claim 4 recites displaying a current status for the at least one entered
order that comprises displaying a quantity that has been filled at the
particular price level for the entered order. Claim 5 recites displaying a
current status for the at least one entered order comprising displaying a
quantity that is currently working at the particular price level for the entered
order. Patent Owner argues that Friesen and MJT each fail to disclose these
features. App. Br. 65. We agree with the Examiner that the combination of
Friesen and MJT discloses these features. See, e.g., Ans. 20. For example,
MJT discloses an order for a tradeable object is executed and that “execution
information” is transmitted “to the user workstation . . . [and the] user
workstation displays the execution information correlated with the display
order information.” MJT Abstract.
Claim 11 recites establishing a plurality of quantity allocation rules to
be used to allocate the preset default order quantity of a trade order received
by the order entry region. Claim 12 depends from claim 11. Patent Owner
argues that the combination of Friesen and MJT fails to disclose or suggest
“a plurality of quantity allocation rules” and makes similar arguments in
support of claim 15. App. Br. 66–67. As previously discussed, both Friesen
and MJT disclose a user interface through which a user places an order
(including a quantity) for a tradeable object. The quantity is “allocated”
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(i.e., distributed) to the tradeable object. One of skill in the art would have
understood that that “allocation” (or “distribution”) of the quantity of
tradeable objects would have been based on the quantity of the tradeable
object desired by the user and that a common method of determining the
desired quantity of tradeable object would be to apply a plurality of “rules”
(e.g., factors in such a consideration) to determine the desired quantity.
Otherwise, the quantity would not be determined properly, not having
considered factors considered to be useful in making the determination. In
other words, it would have been obvious to one of ordinary skill in the art to
have applied the predictable use of the prior art element of consideration of
relevant factors in arriving at a desired decision according to the established
function of making the relevant considerations. “A court must ask whether
the improvement is more than the predictable use of prior-art elements
according to their established functions.” KSR Int’l Co. v. Teleflex, Inc., 127
S. Ct. 1727, 1731 (2007).
In any event, one of ordinary skill in the art, having ordinary creativity
and not being an automaton, would have understood the basic common
sense principles of considering and weighing relevant factors to determine a
desired outcome. “[T]he common sense of those skilled in the art
demonstrates why some combinations would have been obvious where
others would not.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d
1157, 1161 (Fed. Cir. 2007) (citing KSR Int’l Co., 550 U.S. at 413).

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Anticipation – Kemp
Kemp discloses a “graphical user interface” that displays a “spread
data feed” for “tradeable objects,” that includes calculated “spread
quantities” and “total quantity traded (e.g., using EQN 3 and EQN 4).”
Kemp ¶¶ 27, 35, 88, 108; see also EQNs 1–4. Kemp also discloses an
“automatic spreader” that “generate[s] and display[s] a spread window and
its corresponding leg windows” such that a user may enter an order (e.g., “an
entered order . . . to buy”) and generate “corresponding working orders
1034, 1036 automatically entered by the automatic spreader” based on
“us[ing an] equation to calculate spread prices and quote legs [e.g., “EQN 1”
and “EQN 2”].” Kemp ¶¶ 54, 55, 108, 110. In other words, Kemp discloses
allocating an order quantity according to a quantity allocation rule (e.g., a
“total quantity traded” according to “e.g., using EQN 3 and EQN 4”) to a
trade order for a first tradeable object (e.g., “working order 1034”), a second
tradeable object (e.g., “working order 1036”) or both, based on an allocation
rule (e.g., an “equation,” such as “EQN1” and/or “EQN2”).
Patent Owner argues that Kemp discloses “an order for 5 was entered
. . . resulting in an order for 5 for the first leg and an order for 5 for the
second leg” but fails to disclose allocating, as recited in claim 1. App. Br.
63. As previously discussed, Patent Owner also argues that one of skill in
the art would have construed the term “allocating” broadly but reasonably to
mean “distribute,” “divide,” or “apportion.” Even assuming Patent Owner to
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be correct that Kemp discloses “an order for 5” and a resulting “order for 5
for the first leg and an order for 5 for the second leg” and assuming that
“allocating” means “distributing,” as Patent Owner asserts, we are not
persuaded that Kemp fails to disclose “allocating” (or “distributing”) an
order quantity to at least a tradeable object, as recited in claim 1. Patent
Owner does not explain sufficiently how the “distributing” (i.e.,
“allocating”) of the order for “the first leg” and “the second leg” of Kemp
differs from “allocating” as recited in claim 1. In both cases, an order
quantity (e.g., “an order of 5”) is allocated (or “distributed”) to a tradeable
object (e.g., a “first leg” or a “second leg” of Kemp).

SUMMARY
We affirm the Examiner’s rejections of claims 1–18.
No time period for taking any subsequent action in connection this
appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

jagr