[00:00:09] Speaker 01:
This is the last room.

[00:00:37] Speaker 01:
I don't know what to do.

[00:01:20] Speaker 01:
Next case is trading technologies versus IBG and trade station 2017-054.

[00:01:38] Speaker 01:
Mr. Cannon is appellant.

[00:01:54] Speaker 02:
With respect to the 411, I just wanted to follow up one last thing on the public accessibility issue.

[00:02:01] Speaker 02:
Mr. Kawashima testified at Appendix 9668.

[00:02:05] Speaker 02:
The question was asked, Mr. Kawashima talked a little bit about this exhibit, the manual, and you said it was made available at the TSE offices for participants to pick up, correct, answer yes.

[00:02:19] Speaker 02:
And one of counsel's questions, I was a little confused, so I want to clear something.

[00:02:22] Speaker 02:
Did you personally hand these out to participants?

[00:02:25] Speaker 02:
I did hand out some of them, all of them, not all of them.

[00:02:28] Speaker 02:
So he testified that he handed out a few of them.

[00:02:31] Speaker 02:
The problem here is that even if you were to accept that testimony as true and that they were given out to, again, we don't know who actually picked it up.

[00:02:42] Speaker 02:
So we don't have the roadmap for a person of ordinary skill in the art to get it.

[00:02:47] Speaker 02:
Even if it ended up in a TSE member's file, how would a person of ordinary skill in the art locate it?

[00:02:55] Speaker 02:
We just don't have any facts to support that.

[00:03:00] Speaker 02:
And that's the problem with the public accessibility case.

[00:03:06] Speaker 02:
The board, in its opinion, tried to fill in by saying, well, actually, there is evidence that the TSE members employed

[00:03:16] Speaker 02:
GUI designers.

[00:03:17] Speaker 02:
The parties agree a person of ordinary skill in the art has to be a graphical user interface designer with an understanding of electronic trading.

[00:03:26] Speaker 02:
So the board said, yep, the people that actually picked up the document were GUI designers.

[00:03:32] Speaker 02:
And I want to be very clear on this.

[00:03:34] Speaker 02:
There is no evidence of that in the record at all that any of the members employed GUI designers.

[00:03:42] Speaker 02:
None.

[00:03:44] Speaker 02:
With respect to the 411 patent, so the issue on the 411 patent is how does it differ from the 132 and 304 patents that we've discussed?

[00:03:56] Speaker 02:
And I'd like to start with the 101 issue.

[00:03:59] Speaker 04:
The board erred in finding... You know, it's just so much fun to talk about 101 and seldom do you get a do-over and you've got like three in a row here.

[00:04:08] Speaker 04:
How about you move on to obviousness on this one?

[00:04:10] Speaker 02:
Sure.

[00:04:10] Speaker 04:
Because either of those resolves all the claims, correct?

[00:04:14] Speaker 02:
Correct.

[00:04:15] Speaker 02:
Yes.

[00:04:15] Speaker 02:
So yeah, the 103 issues the same for the 132 and the 411.

[00:04:22] Speaker 02:
So TSE is not prior art.

[00:04:24] Speaker 02:
Even if it was prior art, the 103 case is lacking because the prior art is missing an element in the claim.

[00:04:36] Speaker 02:
The board erred by finding that the TSE manual

[00:04:41] Speaker 02:
included the claim order entry region.

[00:04:45] Speaker 02:
So the claims require an order entry region along a static price axis from which you send orders.

[00:04:53] Speaker 02:
It's a very specific limitation.

[00:04:55] Speaker 02:
TSE doesn't have that claim element and either does Belden.

[00:05:00] Speaker 02:
The other reference that they cite to, the element's just missing and not having that element, their 103 case fails.

[00:05:11] Speaker 02:
There's also no motivation to combine the Belden reference with the TSE reference.

[00:05:19] Speaker 02:
The board relied on Belden's reference to speed, but the reference to speed doesn't tell you anything about what to do with the TSE reference.

[00:05:28] Speaker 02:
So in TSE, in order to actually enter orders, you click on what's called a board screen and it opens a new order input window.

[00:05:37] Speaker 02:
It's an entirely separate window.

[00:05:39] Speaker 02:
that is not an order entry region as claimed.

[00:05:42] Speaker 02:
It's not along a static price axis.

[00:05:46] Speaker 02:
And so in that new order input window, you have to do multiple actions to send an order.

[00:05:51] Speaker 02:
And so combining the idea of speed from one reference to TSE doesn't get you to the invention.

[00:05:58] Speaker 02:
It's clear that what the board did was the board looked at our patent that shows an order entry region along a static price axis

[00:06:07] Speaker 02:
where you send orders, and it looked at our patent as a roadmap and then made the combination.

[00:06:13] Speaker 02:
And it's clear because none of the references, individually or in combination, disclosed that very specific order entry region.

[00:06:26] Speaker 04:
The TSE manual discloses double-clicking along a price axis on the board screen, and that opens a new order input window.

[00:06:35] Speaker 04:
Is that correct?

[00:06:36] Speaker 02:
You click on, correct, you click on the board screen and it opens a new order input window.

[00:06:41] Speaker 04:
And then Belden discloses submitting an order with a single click?

[00:06:44] Speaker 02:
It does disclose, well.

[00:06:48] Speaker 04:
Because I think the CSE manual is a double click.

[00:06:50] Speaker 04:
Belden's a single click, right?

[00:06:51] Speaker 02:
Belden does disclose.

[00:06:53] Speaker 02:
It's different.

[00:06:53] Speaker 02:
It's in the PIT paradigm.

[00:06:54] Speaker 02:
But yes, it does show an icon that you can click on to match an order.

[00:06:59] Speaker 04:
And then what about Togger?

[00:07:02] Speaker 04:
Tozer?

[00:07:03] Speaker 02:
Yeah.

[00:07:04] Speaker 02:
Tozer is the reference relied on for the default quantity, which is another element of the plan.

[00:07:09] Speaker 04:
Right.

[00:07:09] Speaker 04:
So why isn't the combination of the three of those disclosing the order entry region?

[00:07:16] Speaker 02:
Because the order entry region is not disclosed in any of the references at all.

[00:07:21] Speaker 02:
There's no teaching that gets you to the board screen to send orders from the board screen.

[00:07:29] Speaker 02:
In other words, there's no order entry region along a static price axis from which

[00:07:32] Speaker 02:
you send orders.

[00:07:35] Speaker 02:
Now IB says we're attacking the references individually.

[00:07:40] Speaker 02:
And they cite this case in Ray Merck.

[00:07:41] Speaker 02:
That's not what TT is doing.

[00:07:45] Speaker 02:
Attacking references individually is when you have all the elements in the prior art and you say prior art reference A is missing this and prior art reference B is missing some other stuff.

[00:07:57] Speaker 02:
That's attacking the references individually.

[00:07:59] Speaker 02:
That's not what TT is doing.

[00:08:00] Speaker 02:
What TT is saying is that

[00:08:03] Speaker 02:
That claim element is not in any of the references.

[00:08:08] Speaker 02:
And without that, their 103 case fails.

[00:08:14] Speaker 02:
With respect to the objective evidence in this case, the board erred by finding that the objective evidence did not outweigh what it found to be a strong case of obviousness.

[00:08:28] Speaker 02:
This is not a strong case of obviousness.

[00:08:30] Speaker 02:
TSE doesn't even qualify as prior art.

[00:08:33] Speaker 02:
And even if it did, it's missing a claim element.

[00:08:36] Speaker 02:
But putting that aside, the overwhelming evidence in this case shows that even if they did have all the elements, the invention can't be considered obvious under any circumstances.

[00:08:48] Speaker 02:
The root of the error with respect to the objective evidence in this case has to do with Nexus.

[00:08:55] Speaker 02:
The board found that TT was not entitled to the presumption of Nexus

[00:09:00] Speaker 02:
Because MDTrader, TT's commercial embodiment, was not the invention.

[00:09:05] Speaker 02:
That was the root of the error.

[00:09:06] Speaker 04:
Well, part of the problem for me is because your expert had a claim chart that sort of compared it to MDTrader and showed how each limitation was present, which I think may have overcome that problem.

[00:09:24] Speaker 04:
But the board said that you couldn't

[00:09:27] Speaker 04:
It technically messed up somehow there procedurally on a regulation 42.6 a three and that therefore they weren't going to rely on that evidence or something.

[00:09:37] Speaker 02:
Yeah.

[00:09:37] Speaker 02:
And I think that was wrong.

[00:09:39] Speaker 02:
I think it was overly harsh by the board to do that because our patent owner response clearly argued

[00:09:45] Speaker 02:
and said that MD Trader was launched in 2000.

[00:09:49] Speaker 02:
MD Trader is the commercial embodiment.

[00:09:51] Speaker 02:
Every element of the claims is present.

[00:09:53] Speaker 04:
Well, your response says that, but the only evidence is this expert claim chart, right?

[00:09:57] Speaker 02:
Well, the argument has to be in the patent owner response, which it was.

[00:10:01] Speaker 02:
And under the rules, affidavit and evidence do not have to be in the patent owner response.

[00:10:07] Speaker 02:
They can be attached as evidence, the affidavit and the supporting claim chart.

[00:10:12] Speaker 02:
So what the board was saying.

[00:10:13] Speaker 04:
But you think it's enough to simply allege that it has all the elements and that that entitles you to nexus.

[00:10:20] Speaker 04:
You don't think that you have to sort of make any kind of proffering that it has all the evidence and allegation is sufficient?

[00:10:27] Speaker 02:
No, no.

[00:10:28] Speaker 04:
Because the proffering comes in the expert report or declaration.

[00:10:32] Speaker 02:
That's right.

[00:10:32] Speaker 02:
And that is the declaration and the claim chart are evidence supporting our argument.

[00:10:38] Speaker 02:
The argument has to be in the POR.

[00:10:40] Speaker 02:
Our argument is,

[00:10:42] Speaker 02:
MD Trader is the invention, which, by the way, no one has ever disputed ever that that wasn't the commercial embodiment.

[00:10:48] Speaker 02:
IB can't point to a single element from the claims that's missing in MD Trader.

[00:10:53] Speaker 02:
But the board believed that we had to put the claim chart essentially into our patented response, which we think is just not required under the rules or the regulations.

[00:11:08] Speaker 02:
37 CFR, section 42.638.

[00:11:12] Speaker 02:
says exhibits required evidence consisting of affidavits, transcripts must be filed in the form of an exhibit.

[00:11:22] Speaker 02:
And that the regulation only prohibits incorporation by reference of arguments, not evidence.

[00:11:29] Speaker 02:
So it's not like we were reaching outside the patent owner response and then putting in an entirely new argument.

[00:11:34] Speaker 02:
Because our patent owner response clearly made the argument.

[00:11:39] Speaker 02:
TT was entitled to a presumption of nexus.

[00:11:42] Speaker 02:
And when you look at the overwhelming evidence in this case, initial skepticism followed by commercial success, copying, widespread praise.

[00:11:53] Speaker 02:
In 30 years of practicing patent law, I've never seen this much evidence of objective evidence.

[00:11:59] Speaker 02:
And the board, I think, did everything it could to try to chip away at that presumption so that then it could just dismiss or hand wave over this overwhelming evidence.

[00:12:11] Speaker 02:
Putting aside the presumption of nexus, the board also made another error, a big error, and that is even without the presumption of nexus, TT put in overwhelming evidence that the objective evidence was actually tied to the claim features, putting aside the presumption.

[00:12:31] Speaker 02:
And so TT submitted the declaration of Mr. Thomas, the declaration of Mr. Burns, the declaration of Mr. Gianopoulos,

[00:12:39] Speaker 02:
the declaration of Mr. McDonald.

[00:12:42] Speaker 02:
TT put in trader declarations, third-party trader declarations, singing the praises of TT's invention and tying the benefits, the evidence, not only to MDTrader, but also to the claimed features.

[00:12:56] Speaker 04:
I know I'm the one that pushed you into 103.

[00:12:58] Speaker 04:
Can I now ask you a 101 question?

[00:13:00] Speaker 02:
Sure.

[00:13:00] Speaker 04:
Because I just don't want you to not be able to answer it before your time runs out and then have me ask the other person.

[00:13:05] Speaker 04:
Do you think all these cases have to stand or fall together on 101?

[00:13:08] Speaker 02:
Yes.

[00:13:10] Speaker 02:
And I think it's clear from CQG, they found that the claims clearly meet step one.

[00:13:19] Speaker 02:
It's a legal question.

[00:13:20] Speaker 02:
You look at the claim.

[00:13:21] Speaker 04:
Yeah, but it's not binding, right?

[00:13:23] Speaker 04:
It's not binding because, A, it's non-preq, and, B, these are different defendants.

[00:13:28] Speaker 04:
So even with regard to the identical patent, it's not binding.

[00:13:32] Speaker 02:
Your Honor, you know, it's not binding.

[00:13:33] Speaker 02:
But if this court were to say two years ago this patent meets step one, and then two years later says,

[00:13:39] Speaker 02:
Magically, it doesn't meet step one.

[00:13:42] Speaker 02:
Our patent system's in real trouble, if that's the result.

[00:13:45] Speaker 00:
Do all the cases rise and fall on our finding of whether we're looking at a technological invention or not?

[00:13:51] Speaker 02:
They do.

[00:13:53] Speaker 02:
They do.

[00:13:54] Speaker 02:
All of these patents, the 411 patent, when you look at the 411 patent in terms of the difference in the 411 from the 132 and 304,

[00:14:07] Speaker 02:
There's no meaningful difference between the claims of the 411 and the 132, 304 patents.

[00:14:12] Speaker 02:
In fact, I'd be admitted in the underlying case that was stayed, the BGC case, that there are, quote, no appreciable differences between the patents in suit from the perspective of 101.

[00:14:26] Speaker 02:
And I have the site for that.

[00:14:28] Speaker 02:
It's Trading Technologies versus BGC.

[00:14:31] Speaker 02:
It's docket number 708, page 4, note 5.

[00:14:35] Speaker 02:
So when the case was being stayed, IB said, hey, for purposes of 101, all these assertive patents, which includes the 132, 304, and 411, they all rise and fall together under 101, which we believe is also true because the 411 claim has no meaningful differences between the 132 and 304.

[00:14:54] Speaker 04:
Well, but the board said that this case involved different arguments and different evidence in addition

[00:15:04] Speaker 04:
to being different defendants and being a different patent.

[00:15:07] Speaker 04:
I understand it's a continuation and the spec is identical.

[00:15:10] Speaker 04:
But the board said this case had different arguments and evidence.

[00:15:14] Speaker 04:
It's got to be the case that different defendants can come along with different arguments and different evidence and get a redo.

[00:15:22] Speaker 04:
That's the way our system works.

[00:15:24] Speaker 02:
I mean, the CQG case is not binding.

[00:15:28] Speaker 02:
And I understand a party can make

[00:15:30] Speaker 02:
try to make the same argument.

[00:15:31] Speaker 02:
But how many times is TT going to have to face the 101 question on step one?

[00:15:36] Speaker 02:
This court has looked at these claims, have found that they're specific, that they have a specific technological improvement over the prior art.

[00:15:46] Speaker 02:
That's the opposite of an abstract idea.

[00:15:50] Speaker 02:
And now for IB to come to this court now and say, no, no, no, no, now it's all of a sudden.

[00:15:56] Speaker 04:
Do these claims recite the static price access limitation?

[00:15:59] Speaker 02:
They do not recite.

[00:16:00] Speaker 04:
So one of the things the Federal Circuit expressly relied on in CQG as supporting its determination of eligibility is not present in these claims.

[00:16:10] Speaker 02:
The 411 patent solves problems of visualization.

[00:16:17] Speaker 02:
The 411 patent, if you look at the difference.

[00:16:19] Speaker 04:
But do you see, I'm just, you're saying everything is a stand or fall together.

[00:16:22] Speaker 04:
There are a lot of differences.

[00:16:24] Speaker 04:
There's different arguments, different evidence, different claim limitations.

[00:16:27] Speaker 04:
And one of the very limitations we cited in CQG as supporting the eligibility isn't present in this patent.

[00:16:34] Speaker 04:
And so I guess I'm just sort of hesitating to think that your all or nothing suggestion.

[00:16:41] Speaker 04:
I mean, it's appealing to me.

[00:16:42] Speaker 04:
Trust me.

[00:16:43] Speaker 04:
But I don't know.

[00:16:45] Speaker 02:
I don't know what to do with this.

[00:16:46] Speaker 02:
If you look at the 411 claim and you compare it side by side, I think the dissenting judge at the board put it best when he said, taking out the word static,

[00:16:55] Speaker 02:
doesn't cast this claim into the realm of abstractness.

[00:16:58] Speaker 02:
And why is that?

[00:16:59] Speaker 02:
Because the 411 claim has specific structure, makeup, and functionality.

[00:17:04] Speaker 02:
It has a price axis.

[00:17:06] Speaker 02:
It has indicators.

[00:17:07] Speaker 00:
Doesn't it also function the same way, even though it doesn't recite a static price index?

[00:17:14] Speaker 02:
That's exactly right.

[00:17:14] Speaker 00:
The functions are still there.

[00:17:16] Speaker 02:
The functions are still there.

[00:17:17] Speaker 02:
You have a price axis.

[00:17:18] Speaker 02:
You have relative movement of the index.

[00:17:19] Speaker 00:
And those functions are defined by the claim.

[00:17:21] Speaker 02:
That's right.

[00:17:22] Speaker 02:
You've got relative movement of the indicators.

[00:17:24] Speaker 02:
You've got an order entry region.

[00:17:26] Speaker 04:
What's the problem here?

[00:17:27] Speaker 04:
Solving problems with visualization, right?

[00:17:30] Speaker 04:
Is that what the spec says that this is all about?

[00:17:33] Speaker 04:
That sounds awfully abstract to me.

[00:17:35] Speaker 02:
It's not, because the figure two style screen and the conventional order tickets didn't provide, those particular graphical user interfaces didn't provide any visualization, as found by the eSpeed court and in CQG.

[00:17:50] Speaker 02:
the patents solve the visualization problem.

[00:17:53] Speaker 02:
It's a usability problem.

[00:17:55] Speaker 01:
Thank you, counsel.

[00:17:56] Speaker 01:
That consumes your time for this appeal.

[00:18:00] Speaker 01:
Mr. Picard?

[00:18:01] Speaker 03:
Thank you.

[00:18:08] Speaker 03:
I'm going to answer Judge Moore's question first.

[00:18:13] Speaker 03:
So it is our position that the 411 does not rise and fall with the 101 determination that may occur

[00:18:21] Speaker 03:
That surprises me.

[00:18:23] Speaker 04:
I thought you'd say, no, they all fall, and he'd say they all rise.

[00:18:26] Speaker 04:
I mean, I thought you'd both be a lockstep on everything rising and falling together.

[00:18:30] Speaker 03:
Here's why I say that.

[00:18:33] Speaker 03:
It's possible that they may come out differently.

[00:18:36] Speaker 03:
As Your Honor has noted, there's no static price index in the 411, which has been the centerpiece of the patent eligibility arguments that Trading Technologies has raised.

[00:18:45] Speaker 03:
Without that static price index, they don't solve the problem that they've identified.

[00:18:49] Speaker 00:
Well, but as I covered with your opponent, the claims still build that same structure that functions like a static price index, right?

[00:19:01] Speaker 00:
I mean, you have bids and assets that are moving relative to the price index.

[00:19:06] Speaker 00:
And that is a static price index when you have bids and assets that are moving relative to the price.

[00:19:13] Speaker 03:
So there's no dispute that the 411 claims the access there may move is not static?

[00:19:18] Speaker 03:
And so even if you have the relative movement of the inside market, it's entirely possible that the axis is moving, and you could miss your intended price.

[00:19:27] Speaker 03:
I want to return to Judge Moore's question.

[00:19:29] Speaker 03:
So the reason I'm not unequivocal on this is, depending on where this panel falls on the question of whether there are subsidiary fact findings on step one analysis, it may be the case that a remand is appropriate in the first two cases that have been argued today, whereas they might not be in the 411.

[00:19:47] Speaker 03:
Another key difference in the 411 case, the board has made fact findings that the claims of the 411 patent are directed to fundamental economic practice.

[00:20:00] Speaker 03:
There's no challenge to the substantial evidence underlying that determination.

[00:20:05] Speaker 03:
So I think it's possible that this case could come out differently than the others.

[00:20:11] Speaker 03:
Turning quickly to the question of public accessibility,

[00:20:15] Speaker 03:
I want to talk again about the Noble Biocare case.

[00:20:19] Speaker 03:
I think the facts there are instructive here.

[00:20:21] Speaker 03:
The evidence in that case was that the authors or distributors of the relevant manual there, they distributed at a dental conference.

[00:20:31] Speaker 03:
And the evidence was that the manual only reached two people who were co-owners of a dental supply company.

[00:20:39] Speaker 03:
And that was sufficient for this court to find public dissemination.

[00:20:43] Speaker 03:
There was no need for

[00:20:44] Speaker 03:
actual delivery to skilled artisans.

[00:20:45] Speaker 03:
There was no finding that skilled artisans were at the relevant conference.

[00:20:49] Speaker 03:
And here we have, again, the testimony of Mr. Kawashima.

[00:20:52] Speaker 03:
The manual question was given to more than 200 participants, that is, traders on the exchange, participants.

[00:21:00] Speaker 03:
It's reasonable for the board to have concluded that that was the relevant interest of public.

[00:21:04] Speaker 03:
And I think under Nobel BioCare, the public dissemination question is resolved.

[00:21:10] Speaker 03:
If we can turn to the 103 issue, the missing element,

[00:21:13] Speaker 04:
And they had a lot of objective evidence or a dish, a lot.

[00:21:20] Speaker 04:
It's not actually the most I've ever seen.

[00:21:23] Speaker 04:
I would urge your opponent to maybe read TransOcean, the opinion in TransOcean.

[00:21:28] Speaker 04:
But nonetheless, they had a lot.

[00:21:29] Speaker 04:
There was a lot.

[00:21:31] Speaker 04:
It's really up there.

[00:21:32] Speaker 04:
It's among the cases with the most

[00:21:35] Speaker 04:
the largest amount of objective indicia of non-obviousness that I've ever seen.

[00:21:39] Speaker 04:
So it's a lot.

[00:21:40] Speaker 03:
It is a lot.

[00:21:41] Speaker 04:
Yeah.

[00:21:42] Speaker 04:
That can't overcome it?

[00:21:42] Speaker 03:
The volume is not the relevant legal test.

[00:21:45] Speaker 04:
Well, the weight.

[00:21:46] Speaker 04:
I mean, it's got to be weighed against.

[00:21:49] Speaker 03:
It does need to be weighed.

[00:21:49] Speaker 03:
If we look at what the board did here, they did criticize the procedure in which trading technologies submitted its evidence of nexus.

[00:21:57] Speaker 03:
But the board did look at each category of secondary indicia.

[00:22:01] Speaker 03:
Most importantly, it considered the nexus question.

[00:22:05] Speaker 03:
And I think of most relevance here was in its discussion of the commercial success category.

[00:22:12] Speaker 03:
And what the board found as we pointed out to them was that the MD Trader, the product that they had the claim chart for, was a 2014 product.

[00:22:19] Speaker 03:
And if you step through every category of secondary addition that they rely on, whether it's initial skepticism, praised by others, copying, and so on, all of that evidence relates to the 2004 or earlier time period.

[00:22:32] Speaker 03:
And the board correctly pointed out that trading technologies didn't put in any evidence about how the 2014 product related to the products that were in the market in the relevant window.

[00:22:41] Speaker 03:
For all of this evidence that they put in, they fundamentally failed to create a nexus.

[00:22:46] Speaker 04:
This just applies to commercial success, correct?

[00:22:49] Speaker 03:
Well, if you read their briefs here and if you look at their showing below, the only nexus showing they made was between their quote unquote commercial embodiment

[00:22:58] Speaker 03:
and the claims.

[00:22:59] Speaker 03:
But the commercial embodiment was from an irrelevant time period, the 2014 time period.

[00:23:04] Speaker 03:
And if you step through every category, all of that evidence relates to a much earlier time.

[00:23:09] Speaker 04:
And to be fair, the board did, in many instances, for... Well, the copying and the skepticism and the other stuff, though.

[00:23:13] Speaker 03:
That's not effective.

[00:23:14] Speaker 03:
Well, we can take those up individually.

[00:23:16] Speaker 03:
So the skepticism, the board relying on trading technology's own words, said the skepticism wasn't, even if we assume, by the way, Nexus, the skepticism wasn't tied to the claim features because trading technology is set in its

[00:23:28] Speaker 03:
patent and response.

[00:23:29] Speaker 03:
There's skepticism to any changes in the industry.

[00:23:31] Speaker 03:
And they couldn't show why the skepticism in this instance had anything to do with the claim convention.

[00:23:37] Speaker 03:
Same with initial praise.

[00:23:38] Speaker 03:
It was all very broad and wasn't tied to the features themselves.

[00:23:44] Speaker 03:
Again, the copying, they talk about widespread copying.

[00:23:48] Speaker 03:
There was one alleged instance of copying.

[00:23:49] Speaker 03:
That was the eSpeed, which went to trial in 2004.

[00:23:53] Speaker 03:
They've put in trial demonstratives that were used, I assume, at closing.

[00:23:58] Speaker 03:
to show that eSpeed infringed, but we still don't know what the product that they copied ever looked like.

[00:24:04] Speaker 03:
There's no evidence in this record as to what they copied.

[00:24:08] Speaker 04:
Why do we need to know this?

[00:24:11] Speaker 03:
It's their theory that the copying was eSpeed copied MD Trader, not the patent.

[00:24:18] Speaker 04:
They have to prove that the copying is copying the claimed invention, not their product.

[00:24:24] Speaker 03:
Exactly.

[00:24:25] Speaker 03:
But the claimed invention, they contend that the claimed invention was embodied in their product.

[00:24:30] Speaker 04:
But the claims embody the claimed invention.

[00:24:32] Speaker 04:
So all they had to show is that their product was a copy of what they'd invented.

[00:24:36] Speaker 04:
They don't have to show that their product was some carbon copy of their embodiment as commercially marketed.

[00:24:43] Speaker 04:
So I don't see how you're criticizing that evidence.

[00:24:45] Speaker 03:
Well, what I'm saying is

[00:24:46] Speaker 03:
What they put in is the mere fact that eSpeed infringed the patents is not enough.

[00:24:52] Speaker 03:
They're trying to go one step further.

[00:24:53] Speaker 03:
So they infringed and arrived at the claims because they copied the MDTrader product.

[00:24:58] Speaker 03:
My point being is that that copying was of a product that we don't know what it looked like, how it functioned, anything of the sort.

[00:25:06] Speaker 03:
And so you can't infer that by the fact that eSpeed may or may not have looked at MDTrader that that's how they arrived at an active infringement.

[00:25:16] Speaker 03:
If we turn to commercial success, the board correctly pointed out, again, the MD Trader product was from the 2014 time period.

[00:25:23] Speaker 03:
The evidence that they put in for commercial success related to 1996 to 2006.

[00:25:26] Speaker 03:
There can be no connection there.

[00:25:30] Speaker 03:
And they didn't deal with the fact that the MD Trader product was sold as a suite of products and how to cordon off the success that was due to the

[00:25:39] Speaker 04:
Well, if they were entitled to a nexus, it wasn't their burden to prove all that.

[00:25:43] Speaker 03:
Well, the board found the commercial success that even if we assume a nexus, it has been sufficiently rebutted on this element for the reasons that I've just stated.

[00:25:51] Speaker 03:
It's in the wrong time period.

[00:25:53] Speaker 03:
It was part of a larger suite and that there was general growth in the commodity electronic.

[00:25:59] Speaker 04:
Well, it doesn't seem to me that the fact that it's part of a larger suite would ever be sufficient to rebut it.

[00:26:03] Speaker 04:
it would be sufficient to question whether it's correct.

[00:26:06] Speaker 04:
But if they get a presumption, you have to do more and create a question.

[00:26:09] Speaker 04:
You actually have to rebut the presumption.

[00:26:11] Speaker 04:
I mean, the timing is very favorable for you.

[00:26:15] Speaker 03:
I think the timing is dispositive here on all of this.

[00:26:17] Speaker 04:
It's really very favorable for you.

[00:26:18] Speaker 04:
I can't argue that.

[00:26:19] Speaker 03:
I think the timing is dispositive.

[00:26:23] Speaker 03:
For better or for worse, trading technologies chose to pursue their nexus theory by saying, our nexus is that the MD trader product

[00:26:30] Speaker 03:
All of the evidence they intend to rely on for objective indicia is from the wrong time period.

[00:26:36] Speaker 03:
And that cuts across the board.

[00:26:37] Speaker 03:
If you read their briefs in this case, they point only to evidence about the empty trader product from some earlier time period as being the supposedly disregarded nexus.

[00:26:48] Speaker 03:
If I can, I'd like to briefly touch on the missing elements here.

[00:26:52] Speaker 03:
The board's findings are supported by substantial evidence.

[00:26:58] Speaker 03:
Just a moment.

[00:27:01] Speaker 03:
If you look at claims 1 and 26, what TSE showed was a static price axis.

[00:27:09] Speaker 03:
And when you clicked on the TSE order regions, a separate order window would pop up.

[00:27:14] Speaker 03:
Belden, it had single click trading, but it didn't associate its single click trading function with the static price axis.

[00:27:23] Speaker 03:
Citing to the Raman declaration and the joint appendix at 48.18.

[00:27:31] Speaker 03:
Mr. Roman explained why the benefits of the belt-in feature would have been obvious to combine with the status price axis.

[00:27:39] Speaker 04:
No one's ever penalized for not using all their time.

[00:27:42] Speaker 04:
Someone really smart said that once.

[00:27:45] Speaker 03:
Unless this panel has any additional questions, I will.

[00:27:48] Speaker 01:
Thank you, Mr. Picard.

[00:27:50] Speaker 01:
Ms.

[00:27:50] Speaker 01:
Allen, is there anything you need to say?

[00:27:52] Speaker 00:
No.

[00:27:54] Speaker 01:
Thank you.

[00:27:55] Speaker 01:
Mr. Gannon has some rebuttal time.

[00:28:10] Speaker 02:
Your Honors, I invite you to look at the declarations of the traders, the third party traders, in terms of the time frame on when they talked about the features and how.

[00:28:21] Speaker 01:
Actually, Mr. Gannon, I erred.

[00:28:24] Speaker 01:
You didn't have any rebuttal time.

[00:28:26] Speaker 01:
But since you're standing there, I'll give you a minute.

[00:28:29] Speaker 02:
Thank you, Judge Larry.

[00:28:32] Speaker 02:
The issue that the evidence wasn't in the right time frame

[00:28:38] Speaker 02:
It's just not correct when you look at the evidence.

[00:28:40] Speaker 02:
Look at the trader declarations.

[00:28:42] Speaker 02:
Look at the declarations from the other individuals that we cited to.

[00:28:50] Speaker 02:
With respect to the commercial success, again, I think on that issue, the board was just trying to dismiss the evidence by saying, well, maybe something else caused the success.

[00:29:03] Speaker 02:
When in reality, the only evidence put into the record was,

[00:29:06] Speaker 02:
evidence of MD Trader and the claim features causing the success.

[00:29:12] Speaker 02:
Same with copying.

[00:29:13] Speaker 02:
This invention was copied by virtually the entire industry.

[00:29:18] Speaker 02:
And other evidence that the board ignored is that people even greater than ordinary skill in the art actually had the invention in front of them and couldn't arrive at the invention even with hindsight.

[00:29:30] Speaker 02:
When eSpeed tried to copy the invention, they couldn't even replicate it, even when they had it right in front of them.

[00:29:36] Speaker 01:
Thank you, Mr. Cannon.

[00:29:37] Speaker 01:
You can keep standing.