[00:00:00] Speaker 02: Our first case for argument today, well, we're going to consolidate the three of them. [00:00:05] Speaker 02: I'll read all three numbers, 2017-2257, 2017-2621, and 2018-1063. [00:00:17] Speaker 02: All of them are trading technologies versus IBG. [00:00:20] Speaker 02: And for clarity, we're just consolidating them for purposes of oral argument. [00:00:24] Speaker 02: Mr. Gannon, please proceed. [00:00:34] Speaker 07: Good morning. [00:00:35] Speaker 07: May it please the court? [00:00:36] Speaker 07: I'd like to reserve eight minutes for rebuttal. [00:00:39] Speaker 07: And I'd like to start with the 374 patent, which is related to the four patents in the IBG case. [00:00:46] Speaker 07: It's the same patent family. [00:00:48] Speaker 07: It's the exact same specification as the patents in IBG. [00:00:52] Speaker 07: The IBG case resolves the question of jurisdiction for the 374 patent in TT's favor. [00:00:59] Speaker 07: There are no meaningful differences among the claims in the patents in IBG. [00:01:04] Speaker 07: IBG and the 374 patent. [00:01:07] Speaker 07: In fact, IB has admitted that for purposes of CBM eligibility, the differences between the patents in the IBG case and the 374 patent are immaterial. [00:01:20] Speaker 07: And there's a good reason why they've admitted that. [00:01:23] Speaker 07: The technical problem found in the IBG case with the figure two style screen is the exact same technical problem [00:01:32] Speaker 07: In this particular patent, it's a problem with the figure two style screen. [00:01:35] Speaker 08: What is the technical problem? [00:01:37] Speaker 07: The technical problem is with the figure two style screen, it displays information at the inside market on a grid and the information is coming from the exchange and the numbers on the grid are unpredictably changing as the market changes. [00:01:54] Speaker 08: That's all software. [00:01:55] Speaker 07: Pardon me? [00:01:55] Speaker 08: That's all software. [00:01:56] Speaker 07: That's all software, correct. [00:01:58] Speaker 08: But I don't see any technical problem. [00:01:59] Speaker 08: What is the technical [00:02:01] Speaker 08: What is technology you're talking about? [00:02:05] Speaker 07: The technology is the graphical user interface itself. [00:02:09] Speaker 07: Graphical user interface is the interface between the trader and the computing system, and that graphical user interface, the problem was in the interface itself, the way the interface was constructed and how it operated. [00:02:23] Speaker 07: The inside market would change, the prices would flip, and the trader would miss his or her price. [00:02:27] Speaker 07: That's the problem. [00:02:28] Speaker 07: And it's a technical problem because it's a problem with [00:02:31] Speaker 07: the graphical user interface. [00:02:32] Speaker 08: It's a technical problem because somebody said so. [00:02:35] Speaker 08: I don't see it as a technical problem whatsoever. [00:02:37] Speaker 08: It's purely software. [00:02:40] Speaker 07: Your honor, I appreciate that. [00:02:43] Speaker 07: I believe this court has said that software, you can solve technical problems and have technical solutions with software. [00:02:51] Speaker 08: Well, they've said it is sort of a guerrilla warfare against the Alice case. [00:02:56] Speaker 08: I have yet to see it. [00:02:58] Speaker 07: Yeah, I don't think Alice extends that far to say that you can't get a patent on software. [00:03:06] Speaker 07: If that's the case, then you're going to be wiping out an entire area of technology that I don't think Alice intended. [00:03:13] Speaker 08: Well, they said something about if it improves the computer or something like that. [00:03:19] Speaker 08: This is not improving the computer. [00:03:21] Speaker 08: The computer had its capabilities. [00:03:24] Speaker 08: All you did was trigger it. [00:03:26] Speaker 07: Well, Your Honor, I respectfully disagree. [00:03:29] Speaker 07: The graphical user interface is a part of a computer, just like a processor, just like the memory. [00:03:35] Speaker 07: If you're improving the graphical user interface, you're improving the trading system. [00:03:40] Speaker 07: That's been found by this court in the eSpeed case back in 2007, that there was a problem with the screen. [00:03:47] Speaker 07: And in the CQG case from this court, this court found that the same patents [00:03:54] Speaker 07: The same specification solved a technical problem with a technical solution. [00:03:58] Speaker 07: It found it was a technological invention, the CQG case. [00:04:01] Speaker 07: And then it was found again just recently in the IBG case. [00:04:05] Speaker 02: Where did the IBG case find, as you say, that it was solving or it was improving the computer's function? [00:04:13] Speaker 07: Well, IBG, I believe, cited to the CQG case, the CQG opinion. [00:04:18] Speaker 02: So what you're referring to is the IBG case [00:04:22] Speaker 02: felt bound by CQG's prior determination. [00:04:25] Speaker 07: I think IBG did follow CQG and did find that in CQG, that the CQG court found this was a technological invention. [00:04:35] Speaker 08: Well, they said it. [00:04:36] Speaker 08: They didn't find it. [00:04:38] Speaker 08: And both of those are non-precedential opinions, aren't they? [00:04:41] Speaker 07: The CQG, correct, was non-precedential. [00:04:44] Speaker 07: I don't think that matters one bit. [00:04:46] Speaker 07: The Data Engine case, which was precedential, cited to the CQG case. [00:04:52] Speaker 07: and acknowledge that in that case, there were technical problems and technical solutions solved by this patent. [00:04:57] Speaker 08: Excited to it, and maybe shouldn't have. [00:05:00] Speaker 08: We are not really supposed to be using non-precedential opinions as precedent. [00:05:07] Speaker 07: Well, I appreciate that, Your Honor. [00:05:10] Speaker 07: But again, in multiple cases now, this court has found that there was a problem with the GUI. [00:05:17] Speaker 07: It's a software problem. [00:05:19] Speaker 07: The patent solved that problem. [00:05:21] Speaker 07: And that's a technological improvement. [00:05:27] Speaker 07: The 374 patent, as I said, the 374 patent, again, is addressing the same problem. [00:05:34] Speaker 07: And it's doing it through the claims with a specific structure, makeup, and functionality. [00:05:39] Speaker 07: It's part of the same family. [00:05:42] Speaker 07: It's part of the same family. [00:05:43] Speaker 07: In fact, it's the exact same spec attitude in the IPG case. [00:05:47] Speaker 05: I want to ask you a question that's maybe [00:05:50] Speaker 05: kind of an aside, but I do think it's relevant. [00:05:53] Speaker 05: Pardon me. [00:05:55] Speaker 06: The comparison here is that this invention is an improvement over figure two. [00:06:03] Speaker 06: In figure two, the figures change and can change just the instant you want to place an order, and that could skew the intended result. [00:06:15] Speaker 06: But why the comparison with figure two? [00:06:18] Speaker 06: Why not compare it with sort of the way things used to be done on paper? [00:06:23] Speaker 06: And people would write bid, ask, bid, ask, bid, ask as things changed. [00:06:30] Speaker 06: And whatever was written down remained the same. [00:06:33] Speaker 05: It never changed. [00:06:35] Speaker 07: The reason why you look to the figure two style screen, first of all, the spec is referring to the graphical user interface. [00:06:43] Speaker 07: The pen and paper issue, the problem didn't arise. [00:06:48] Speaker 07: in pen and paper. [00:06:49] Speaker 07: There was no problem with that. [00:06:51] Speaker 07: The problem arose with the graphical user interface, the figure two style screen, the way it was constructed, having the inside marking in the same location on the screen. [00:07:01] Speaker 07: So that problem didn't exist. [00:07:04] Speaker 07: It didn't exist on paper. [00:07:06] Speaker 06: But that was a problem not the result of sort of a shortcoming in computers or computer functionality. [00:07:16] Speaker 06: It was a [00:07:17] Speaker 06: perhaps a shortcoming in the way whoever it was that came up with Figure 2 came up with Figure 2. [00:07:25] Speaker 07: Well, actually, Figure 2 is a representation of a graphical user interface that a trader interacts with. [00:07:32] Speaker 07: So I believe that it is a problem with the computer. [00:07:36] Speaker 07: You have a trading system. [00:07:39] Speaker 07: The trader is interacting with that front end. [00:07:41] Speaker 06: But it's a problem because of the way the computer was programmed. [00:07:46] Speaker 07: It's a problem in a way that the graphical user interface was programmed and it is a software problem. [00:07:52] Speaker 07: That's exactly right. [00:07:54] Speaker 07: It's a problem with the software how that screen was constructed that gave rise to the problem. [00:08:01] Speaker 06: And then the invention though provides a different interface that improves the functionality of the overall [00:08:14] Speaker 06: graphical user interface system and if we are consistent with the decision in CQG, we would have to reach the same result. [00:08:26] Speaker 07: That's exactly right. [00:08:27] Speaker 07: The 374 claims, if you look at claim one for example, it's very specific. [00:08:31] Speaker 07: It's talking about graphical locations along a price axis that are displayed. [00:08:37] Speaker 07: You have price levels, sequential price levels that are mapped [00:08:41] Speaker 07: to the location so that when a user, when a trader goes to click in that graphical location, the price level is mapped to that location. [00:08:51] Speaker 07: So if the inside market changes, the mapping doesn't. [00:08:55] Speaker 07: And so when you click on that location, the trader will get the intended price. [00:08:59] Speaker 07: So it's using different words to solve the problem of missing your price. [00:09:04] Speaker 07: And the claim also solves the speed problem [00:09:07] Speaker 07: because the single action of the user input device in that graphical location sets the price along the axis and also sends the order. [00:09:18] Speaker 07: That single action limitation is common to all the patents in IBG as well. [00:09:24] Speaker 07: So speed and accuracy, this invention, the 374, it's using slightly different wording, which may be relevant for, for example, infringement, but for purposes of eligibility, it's way over the line. [00:09:38] Speaker 08: The more you talk, the less it sounds like it's technology and more coding. [00:09:43] Speaker 07: Well, again, I think that goes back to, I think, your question, Judge Mayer, I think goes back to Alice. [00:09:49] Speaker 07: I think Alice was very clear that was a way of doing intermediate settlement on conventional computers. [00:09:58] Speaker 07: And I think the Supreme Court said if you do that, you're not patent eligible. [00:10:01] Speaker 07: I don't think the Supreme Court meant to say, [00:10:04] Speaker 07: If you're doing a software improvement on a graphical user interface for a computer, that that's not patent eligible. [00:10:12] Speaker 07: That can't be the result. [00:10:14] Speaker 08: What does that mean every time we get a bug, a fix on a bug on our iPhone, that we got a new invention? [00:10:19] Speaker 07: I think it depends on what the claims are directed to. [00:10:24] Speaker 07: For example, if you had an interface that had text to click on to get to information, [00:10:32] Speaker 07: in the prior art, but then you came up with a new way to display an icon, for example, that made it easier for the user to recognize something and to access things on the user interface. [00:10:45] Speaker 07: I think that would be an improvement in software. [00:10:47] Speaker 07: It would be an improvement in the graphical user interface. [00:10:50] Speaker 08: And again, we're talking about... Well, it may be, but it doesn't sound like it's technology. [00:10:54] Speaker 08: The technology is there. [00:10:56] Speaker 07: The technology isn't there because... Sitting there waiting to be tickled. [00:11:00] Speaker 07: Well, in the example that I'm giving, the technology wasn't there because you had a way for users to interact with a computer that had a problem. [00:11:10] Speaker 07: And then in my example, the improved graphical user interface makes it so that you can access the computer easier. [00:11:20] Speaker 07: It really comes down to, can you get, are we going to say that software inventions are not patent eligible? [00:11:28] Speaker 07: And I just think that's not. [00:11:28] Speaker 08: Well, I would hope so some day. [00:11:30] Speaker 07: I understand that, Your Honor. [00:11:32] Speaker 07: And again, I don't believe that the Alice case went that far. [00:11:35] Speaker 07: I do not believe they intended this to be the result. [00:11:38] Speaker 08: But except for that one sentence about improving the throwaway line there, that's basically what they were, almost what they said. [00:11:46] Speaker 07: Well, I think they were clear on what they said in terms of a fundamental economic practice and just slapping it on a conventional computer. [00:11:53] Speaker 07: They said, that's not patent-eligible. [00:11:55] Speaker 07: But if you're actually improving the graphical user interface, [00:12:00] Speaker 07: If you're improving a database, if you're improving the processor, then you're patent eligible. [00:12:05] Speaker 07: Now 103. [00:12:06] Speaker 02: I don't see where anyone said if you're improving a graphical user interface, you're eligible. [00:12:11] Speaker 02: There are lots of ways you can improve an interface, most of which could be cosmetic and superficial. [00:12:16] Speaker 02: I don't see how that necessarily entitles you to eligibility unless somehow it's actually improving the computer function itself. [00:12:24] Speaker 07: Well, so if you look at Data Engine. [00:12:26] Speaker 02: And that's what the CQG case held. [00:12:28] Speaker 02: It expressly held. [00:12:30] Speaker 02: the Static Price Index and namely the problem of the trader placing the trader at the wrong price was a technological problem that was solved by the patent and that's why IBG came out the way it did as you well know but you spent all your time on this 347 patent no doubt because it's the best for you it's the same family why don't you turn to the other two because I don't see how those are technological inventions [00:12:55] Speaker 02: because they don't solve that very problem which was the problem CQG identified. [00:13:01] Speaker 02: They don't use anywhere in the spec the static price index language but moreover and importantly those patents are not directed to improving or eliminating a problem with making the wrong trade the way that the 347 arguably is. [00:13:19] Speaker 02: So please turn to those and defend those because [00:13:22] Speaker 02: I'd like to hear you do that. [00:13:24] Speaker 07: I appreciate that, Your Honor. [00:13:25] Speaker 07: I was just getting to that. [00:13:26] Speaker 07: So the 999 and the 056 are the same specification. [00:13:32] Speaker 02: Of each other, but not as any of the patents previously cited by this court. [00:13:36] Speaker 06: Correct. [00:13:36] Speaker 06: They're not part of the same family that was addressed in CQG. [00:13:39] Speaker 07: Correct. [00:13:40] Speaker 07: It's a different patent family, different spec, different claims. [00:13:45] Speaker 07: As Judge Moore pointed out, the claims don't have static, and they don't have single action, and they're not [00:13:52] Speaker 07: solving the same problems with the same solutions. [00:13:55] Speaker 07: But, and I'll start with the 999. [00:13:58] Speaker 07: The 999 patent is solving problems with the PriorArt graphical user interface in a different way. [00:14:05] Speaker 06: And the 999 patent... You say it sounds it in a different way. [00:14:10] Speaker 06: It doesn't address the kind of problem that was addressed in the 374 patent. [00:14:15] Speaker 06: It simply displays real-time information as trends [00:14:22] Speaker 06: progress. [00:14:24] Speaker 06: But other than that, that just seems to me to be the gathering and displaying of information, what computers have always done. [00:14:33] Speaker 07: And that was the same argument made by IB with the 374 and other patents and IBG. [00:14:40] Speaker 07: But if you look at the claims of the 999, and I'll start with the 999, they are very specific claims that solve problems with prior ARC GUIs. [00:14:50] Speaker 07: Problem number one, [00:14:52] Speaker 07: The prior art, as the spec says, in three different places was not intuitive because you didn't see the market. [00:15:00] Speaker 07: You just saw the best bid and the best ask. [00:15:02] Speaker 02: What does that have to do with the computer's functioning? [00:15:04] Speaker 07: It has to do with the graphical user interface. [00:15:07] Speaker 02: No, it has to do with the person who is executing trades. [00:15:12] Speaker 02: Intuitive. [00:15:13] Speaker 02: Computers and intuitive. [00:15:15] Speaker 02: You're telling me that an interface, being intuitive or not, is [00:15:19] Speaker 02: Related to improving the computer or related to improving the person's interaction with the computer. [00:15:24] Speaker 07: It's improving the computer Functionality just as far as was found in data engine data engines a perfect example in that case It was a electronic spreadsheet and they added tabs to the spreadsheet it made it more User-friendly and made it more intuitive for a user to be able to access the spreadsheets No But that was a different way to interact with the computer and it was a different way for the computer to function [00:15:49] Speaker 06: That strikes me as being dramatically different from what we're dealing with here because all you're doing is giving the user different information. [00:16:03] Speaker 06: It seems to me that has nothing to do with improving the actual functionality of the system. [00:16:10] Speaker 07: It's improving the graphical user interface just like the [00:16:15] Speaker 07: Brumfield patents and here's how it does it well it's different but it's a different problem different solution I'll give you that but let me just the how it's doing it is it's saying there's a problem these prior screens only show you you know the inside market it's not intuitive it's not user-friendly because you don't see all the bids and asks along a scale price axis a scale price axis which shows prices where there are no orders [00:16:43] Speaker 07: And you see all the bids and asks. [00:16:45] Speaker 07: But that's not the only thing the 999 claim has. [00:16:48] Speaker 07: It also has the functionality of showing the user's order and order icon on the screen. [00:16:55] Speaker 07: And that solved the problem with prior graphical user interfaces, where prior to that, your order wasn't shown on the screen. [00:17:03] Speaker 07: It was in a different screen. [00:17:05] Speaker 06: It seems to me you're saying that every new and different graphical user interface is patented. [00:17:12] Speaker 07: We're not saying every graphical user interface is patent-eligible. [00:17:18] Speaker 07: What we are saying is that if you have a graphical user interface that's improving, that is an improvement. [00:17:26] Speaker 07: That's an improvement. [00:17:27] Speaker 01: Improvement to what, though? [00:17:28] Speaker 01: That's the problem. [00:17:29] Speaker 07: Improvement to the graphical user interface. [00:17:31] Speaker 01: That's not a computer. [00:17:32] Speaker 01: It's an interface. [00:17:33] Speaker 01: It's just an interface. [00:17:34] Speaker 01: It's a presentation. [00:17:36] Speaker 01: It's like the wrapping paper on a Christmas present. [00:17:38] Speaker 01: It's not the present. [00:17:39] Speaker 07: Well, you know, I flew out here from O'Hare, and I respectfully disagree. [00:17:44] Speaker 07: Those graphical user interfaces in that cockpit are critical. [00:17:48] Speaker 07: How the pilot interacts with that graphical user interface, it is technology. [00:17:54] Speaker 07: Problems with the graphical user interface can cause severe issues flying, for example, on airplanes. [00:18:02] Speaker 07: This is no different. [00:18:04] Speaker 07: It's a graphical user interface. [00:18:05] Speaker 07: Now, instead of flying an airplane, [00:18:07] Speaker 02: Improving a graphical user interface, in my mind, would be enhancing the resolution, for example. [00:18:13] Speaker 02: That would go to the functioning of the graphical user interface. [00:18:18] Speaker 02: But just categorizing and differently presenting the data, like for example, hey, let's put it in bold instead of regular text because people can see it better. [00:18:27] Speaker 02: Or let's put the really important parts in bold. [00:18:29] Speaker 02: Ah, now I have a graphical user interface, which has improved technology because people will make fewer mistakes because the important things are bolded. [00:18:36] Speaker 02: That, it seems to me, under your arguments would be eligible. [00:18:40] Speaker 02: And I just don't see how that's possible with the state of the law. [00:18:42] Speaker 07: Well, so what we're saying with respect to the 999, I only got through the two of the problems. [00:18:47] Speaker 07: One was the lack of intuitiveness. [00:18:51] Speaker 02: But I would have thought you would have started with your strongest ones. [00:18:56] Speaker 07: Go ahead. [00:18:56] Speaker 07: The intuitiveness. [00:18:57] Speaker 07: Second, you have this order icon for the first time now is being displayed with all of the other orders. [00:19:03] Speaker 07: And now, if you want to change your order, [00:19:06] Speaker 07: what the 999 patent the claim is directed to. [00:19:09] Speaker 07: Instead of going to a different screen and finding my order and canceling it and sending a new order, the 999 patent allows you to select your order on the screen, move it to a new location along the scale price axis, put it there, which automatically sets a price, and then you send the order from there. [00:19:29] Speaker 07: It's solving, what it's doing is it's making it more efficient for the trader [00:19:34] Speaker 07: to be able to trade more quickly, more efficiently. [00:19:37] Speaker 07: It's no different than any other improvement to a graphical user interface. [00:19:44] Speaker 07: It's a very specific claim that's solving three different problems. [00:19:50] Speaker 07: Actually, three different problems. [00:19:52] Speaker 07: Intuitiveness, having your order on the screen, being able to click on your order, move it to a new spot along the scale price axis, select a price, [00:20:03] Speaker 07: and send the order to the exchange. [00:20:05] Speaker 07: That's improving over prior graphical user interfaces that didn't have that functionality. [00:20:12] Speaker 07: That's the 999 patent. [00:20:15] Speaker 07: Real quickly, I just want to hit the 056 patent. [00:20:18] Speaker 07: Again, it's the continuation patent, often the 999 patent. [00:20:24] Speaker 07: That patent also solves problems with prior ARC GUIs. [00:20:30] Speaker 07: The first problem is the same. [00:20:33] Speaker 07: You know, not showing all of the orders on the screen. [00:20:36] Speaker 07: You only see the best bid and the best ask in the prior art. [00:20:40] Speaker 07: The 056 claims solve that problem by providing a price access with the market, including the inside market. [00:20:50] Speaker 07: And then it claims a specific way to select a default quantity for the trade. [00:20:56] Speaker 07: And the default quantity allows you to make multiple trades at the same quantity without having to [00:21:03] Speaker 07: select the quantity every time between each trade. [00:21:07] Speaker 07: So you select the default quantity. [00:21:09] Speaker 07: You select the default quantity along the price axis, which sets the price for a quantity. [00:21:15] Speaker 07: Again, it's solving a problem with the prior art graphical user interfaces. [00:21:22] Speaker 07: Is it as revolutionary as the Brumfield patents? [00:21:26] Speaker 07: No. [00:21:28] Speaker 07: But that's not the test. [00:21:29] Speaker 07: The test for eligibility shouldn't be [00:21:31] Speaker 07: How great is the technological invention? [00:21:34] Speaker 07: The test is just, is it a technological invention? [00:21:38] Speaker 07: Issues of 102 and 103 then would deal with issues of, well, was it obvious to do that? [00:21:50] Speaker 07: And if there are no further questions, I'd like to save the rest of my time for rebuttal. [00:21:56] Speaker 02: That sounds great. [00:21:56] Speaker 02: OK, let's hear from on the opposing side, Mr. Picard. [00:22:07] Speaker 04: I'd like to start with the CBM eligibility issue as it relates to the 374 patent and I think it's important to not lose sight of the fact that the claims of the 374 patent are radically different than the claims that were addressed in the CQG decision and last month's decisions in the IBG cases. [00:22:28] Speaker 06: What do you say radically different? [00:22:30] Speaker 06: In what sense? [00:22:31] Speaker 04: I'd like to step you through it and the board essentially stated that [00:22:35] Speaker 04: that fact in the final written decision at pages 14 through 15, which we pointed out in the red brief at 12. [00:22:42] Speaker 04: If we go to claim one of the 374 patent, we have a receiving step. [00:22:47] Speaker 04: The computing device receives market data. [00:22:48] Speaker 04: That's just information about bids and offers for a given commodity. [00:22:55] Speaker 04: It identifies the prices for those bids. [00:22:58] Speaker 04: And then it has a single displaying step. [00:23:00] Speaker 04: And the displaying step [00:23:02] Speaker 04: is the display of an axis. [00:23:04] Speaker 04: The axis has graphical locations that allow for the user to click on them, and in the final step that would result in the sending of a price. [00:23:14] Speaker 04: There is this mapping step in the claims, and that's where the prices of the bids and offers are mapped to this axis. [00:23:22] Speaker 04: However, those prices are not displayed. [00:23:25] Speaker 04: The board found that at paragraph, I'm sorry, final decision 14, [00:23:30] Speaker 04: And the fact that the mapping is not displaying is confirmed by looking at the dependent claims in this patent. [00:23:37] Speaker 04: For example, if we look at claim 32, which depends from claim one, it says displaying by the computing device the plurality of sequential price levels in alignment with the plurality of graphical locations. [00:23:50] Speaker 04: Claim one doesn't display those prices. [00:23:53] Speaker 04: You can essentially have an unmarked line, and when you click across the regions there, it would send a trade. [00:23:59] Speaker 04: Again, confirming that displaying and mapping are different. [00:24:02] Speaker 04: If you look to claim 22, it recites both displaying and mapping. [00:24:08] Speaker 04: In addition, the 374 patent does not recite the static access. [00:24:13] Speaker 04: If you look at the mapping step, all it says is that the moment that you map new prices to the access, you keep it static at that very moment. [00:24:24] Speaker 04: But the access can change at the moment before and the moment after the price is changed. [00:24:28] Speaker 04: And you think about the speed of a clock cycle on a computer, the problem that this figure two GUI allegedly presented would still be there because the human being can't relate to that kind of time scale. [00:24:39] Speaker 04: So the axis can move anytime in the embodiments except that one instant when price levels change, but before and after it may move. [00:24:49] Speaker 04: So we think about that, there's really no technology there, simply the display of a line and the well-known technique of clicking along that line to send an order. [00:24:59] Speaker 04: And for that reason, the PTAB was not arbitrary or capricious when it found that the problem solved by the 374 patent was not a technical one and it didn't do so with a technical solution. [00:25:15] Speaker 04: Unless there are questions about the eligibility question on 374, I do want to talk about eligibility as it relates to the other patents involved in this hearing, starting with the 999 patent. [00:25:28] Speaker 04: We heard from Mr. Gannon today, and I think it largely tracks what was in the letter brief that the party submitted last week. [00:25:36] Speaker 04: And they essentially point out three supposed technical problems that were solved by the 999 GUI, the first being that conventional GUIs did not display all pending orders. [00:25:47] Speaker 04: This is at page three of their letter brief. [00:25:50] Speaker 04: Well, respectfully, the 999 patent doesn't do that either. [00:25:54] Speaker 04: It merely displays a plurality of bids [00:25:57] Speaker 04: and offers not all. [00:26:02] Speaker 04: More importantly, if we think about that problem, if we look at the background of the 999 patent and the 056 patent, it talks about the way of trading before these supposed inventions. [00:26:14] Speaker 04: And in that environment, the market would track every single bid and offer that was pending. [00:26:21] Speaker 04: And it would provide that information to the market makers who could trade on that information. [00:26:26] Speaker 04: So the problem wasn't a technical one. [00:26:27] Speaker 04: The problem was one of, at least in this single respect, was about information access. [00:26:33] Speaker 04: Who do we give the information to? [00:26:35] Speaker 04: According to the 999 patent, in the prior art, the decision was made to give it to the market makers, but not run-of-the-mill traders. [00:26:41] Speaker 04: That's not a technical problem. [00:26:44] Speaker 04: And we can see that, for example, if we look at figure two from the 132 patent to the joint dependence at 8610, [00:26:52] Speaker 04: that solved the same problem that they're pointing to here. [00:26:54] Speaker 04: It presents a plurality of bids and offers in that GUI. [00:26:57] Speaker 04: That was not a pre-existing problem. [00:27:00] Speaker 06: As I understand Mr. Gannon's argument, he's basically saying that there's improved functionality here because the graphical user interface of the 999 patent, the claimed invention in the 999 patent is based on a reconfiguration that provides enhanced [00:27:22] Speaker 06: information to the user. [00:27:24] Speaker 04: I think, as I understand their argument, it's a more intuitive way to present the information than conventional GUIs. [00:27:31] Speaker 04: We don't really know what the conventional GUIs are except for the single example of figures. [00:27:34] Speaker 06: Let's say it's a more intuitive way to do it, but it's different, and it's different because it was programmed differently. [00:27:41] Speaker 04: The fact that it is different is not dispositive about whether it is a technological invention. [00:27:47] Speaker 06: How did it become different other than being reprogrammed, which is essentially technology? [00:27:56] Speaker 04: The programming techniques to display bids and offers along an axis is not a technical solution. [00:28:04] Speaker 04: The board was correct in finding that because the programming techniques that were used, the choices about how to display information, those didn't involve new or non-obvious programming techniques or new hardware. [00:28:16] Speaker 04: In fact, you read the patent, it doesn't explain how to do any of this. [00:28:18] Speaker 04: It's all result-oriented computer functions that are generic. [00:28:22] Speaker 04: Those are not technological inventions. [00:28:23] Speaker 06: Yeah, but they just didn't happen overnight. [00:28:26] Speaker 06: They happened because somebody created a different program. [00:28:33] Speaker 04: Yes, it did. [00:28:33] Speaker 04: But the effort, and even as more intuitive, doesn't make it technological. [00:28:38] Speaker 04: And I think it's important to be mindful of our standard of review here. [00:28:42] Speaker 04: It's one of arbitrary and capriciousness. [00:28:44] Speaker 04: admit that it was not arbitrary and capricious for the board here to look at the patent. [00:28:49] Speaker 04: And the patent identifies the problem of traders not having access to sufficient information. [00:28:55] Speaker 04: It talks about the market exchanges would not share all the bids and offers to all of the traders, but they did to some. [00:29:03] Speaker 04: And there was a problem that the traders had to gather information from numerous sources so that they could anticipate where the market was headed and improve profitability. [00:29:12] Speaker 04: The board is [00:29:13] Speaker 04: did not act arbitrarily. [00:29:14] Speaker 04: That's not a technical problem. [00:29:16] Speaker 04: It's the problem of synthesizing information of human comprehension. [00:29:21] Speaker 04: If I may, I want to turn to the second point that Trading Technologies has raised in their papers about the supposed technical problem solved by the 999 GUI. [00:29:31] Speaker 04: And they say that the GUI displayed own orders in a separate window. [00:29:35] Speaker 04: Again, not a technical problem, just a design choice about where to display information on the screen. [00:29:41] Speaker 04: And again, this relates to the notion of the drag and drop functionality that is claimed in the 999 patent. [00:29:47] Speaker 04: That wasn't new or not obvious. [00:29:49] Speaker 04: That was famously well known by the time of the 999 patent. [00:29:52] Speaker 04: Again, the board was well within its bounds to so find. [00:29:59] Speaker 04: Finally, they claim that the conventional GUIs that existed at the time of the 999 patent had slow and efficient order entries requiring multiple steps. [00:30:10] Speaker 04: The 999 patent doesn't have a single action order entry, if you will. [00:30:15] Speaker 04: If you look at the claims and compare them to the description at column 10, line 44, to column 11, line 4, you'll see that whether you're dragging and dropping the token or using the task bar, you have a multi-step process that requires selecting quantities, and then dragging it to the right location or filling in a box, and then when it's all said and done, there's a confirmation window, which then requires the user to [00:30:40] Speaker 04: confirm, modify, or cancel the orders. [00:30:43] Speaker 04: So the efficiencies that may have been present, we submit they're not in the 374 patent. [00:30:48] Speaker 04: They're not present in 999 or 056. [00:30:51] Speaker 04: Not to mention, if we look at the prior GUI of Figure 2, it already solved that problem with single action order entry. [00:30:58] Speaker 04: That's the problem that they've said that when you click on Figure 2, it sends the order. [00:31:01] Speaker 04: You don't have a chance to modify it. [00:31:03] Speaker 04: This wasn't really a problem. [00:31:05] Speaker 04: These are all made up problems. [00:31:06] Speaker 04: If I may then turn to [00:31:09] Speaker 04: their points raised on CBM eligibility as concerns. [00:31:13] Speaker 04: The 056 patent, they raised two points here. [00:31:16] Speaker 04: Again, this notion that the conventional GUIs did not provide an intuitive view because they did not display all bids. [00:31:23] Speaker 04: Again, as with the 999 patent, the 056 does not display all bids and offers either. [00:31:29] Speaker 04: It's just a plurality. [00:31:31] Speaker 04: And as with the 999 patent, that's not a technical problem. [00:31:33] Speaker 04: That's a problem of who do we allow access or who do we distribute information to. [00:31:38] Speaker 04: They also make the point that the prior accused didn't display information on the scaled price axis. [00:31:46] Speaker 04: If you look at the 056 patent, they don't recite the scaled price axis, so that's not a feature of those claims either. [00:31:52] Speaker 04: And again, they raise the similar point in 056 as they had with the 999 patent that somehow the 056 solved the problem of slow and inefficient order entry. [00:32:04] Speaker 04: If you look at the claims of the 056, again, they don't provide a solution to that. [00:32:09] Speaker 04: And even if they did, it wouldn't be a technical one. [00:32:10] Speaker 04: There's no single action order entry. [00:32:12] Speaker 04: Even if there was, that's this well-known technique of using mouse clicks to send commands through the GUI interface to the computer. [00:32:22] Speaker 04: If there's no questions on CBM eligibility, I would like to briefly touch on the 101 issues. [00:32:29] Speaker 04: If we look at the, and this relates to the 056 patent and the 999 patent, if we look at the arms treatise, for example, or reference, [00:32:39] Speaker 04: as well as the Weiss reference which is in the records of those two cases. [00:32:42] Speaker 04: What we see here in both of those examples is a display of offers and bids on a price axis and it would be updated. [00:32:51] Speaker 04: All that's happened here is the automation of that display using generic result-oriented computer commands and those are not the kind of inventions that are eligible for patenting. [00:33:04] Speaker 04: If we then turn back to the 374, the claims again are [00:33:08] Speaker 04: strikingly different than what's in 132 and 304 patent. [00:33:13] Speaker 04: Because you don't display prices along the axis, you can't possibly solve the problem that Figure 2 allegedly presents. [00:33:21] Speaker 04: And so the basis for their patent eligibility in those related cases simply doesn't exist here. [00:33:30] Speaker 04: Moreover, there's no static price axis in the claims of the [00:33:35] Speaker 04: 374 patent. [00:33:36] Speaker 04: If you look at the claims there, you'll look at claim seven. [00:33:39] Speaker 04: I think that's the closest one that gets to a static price axis. [00:33:43] Speaker 08: Now, you are trying to distinguish it from the earlier cases, but that really isn't necessary. [00:33:48] Speaker 08: It's an unprecedented one. [00:33:49] Speaker 08: Do you agree? [00:33:50] Speaker 04: I do. [00:33:51] Speaker 08: I mean, even if they were right, which I doubt. [00:33:56] Speaker 04: We respectfully think that those decisions were not correct. [00:34:00] Speaker 04: The record that was presented there is different than the record in this case, and that may be one reason. [00:34:05] Speaker 04: I just want to point out that there are no static price axis in the 374 patent. [00:34:11] Speaker 04: I was pointing to claim seven, which talks about keeping the mapping static, but again, there's no display of prices in that embodiment. [00:34:18] Speaker 04: But they don't separately argue for the patent eligibility of claim seven. [00:34:21] Speaker 04: They instead focus on claims 13 through 15. [00:34:24] Speaker 04: Those claims depend from claim one in which there is no static price axis. [00:34:28] Speaker 04: So again, that doesn't solve and can't solve the problem that they have presented as it relates to figure [00:34:34] Speaker 04: two-style GUIs, and the PTAB should be affirmed in its patent eligibility findings as to that patent as well. [00:34:43] Speaker 04: Unless there are other questions touching on the obviousness issues, I will yield my time to the government, if that's possible. [00:35:09] Speaker 00: Thank you, Your Honor, and may it please the Court. [00:35:11] Speaker 00: We've intervened to address the constitutional issues here. [00:35:14] Speaker 00: As we explained in our briefs, the issues were forfeited, and this case does not involve a retroactive application of the CBM procedures at all. [00:35:22] Speaker 00: But I'd like to focus on the due process and the takings arguments. [00:35:27] Speaker 00: First, with respect to due process, just as in PatLex, Congress had a rational basis for applying CBM review to patents that issued before the AIA was passed. [00:35:37] Speaker 00: and that was to correct agency mistakes and to protect the public interest by keeping patents within their legitimate scope. [00:35:44] Speaker 00: With respect to the takings issue, the cancellation of a patent through covered business method review does not constitute a taking because it rests on a determination that the patent holder never had a valid property interest in the first place. [00:35:59] Speaker 00: And also cancellation occurs only after this... Are these pre-CVM patents? [00:36:06] Speaker 02: Excuse me, Your Honor. [00:36:07] Speaker 02: Do these patents proceed the enactment of the CBM statute? [00:36:12] Speaker 00: I believe that these patents were all issued prior to the AIA. [00:36:16] Speaker 02: So these patents were issued at a time when Section 101 was not allowed to be challenged under any sort of administrative review? [00:36:28] Speaker 00: That's correct, Your Honor. [00:36:29] Speaker 02: So why wouldn't it be a taking to now introduce into the [00:36:35] Speaker 02: existing patents which were awarded property rights. [00:36:40] Speaker 02: They were awarded at a time when 101 couldn't be challenged in the administrative proceeding. [00:36:46] Speaker 02: Why wouldn't it be a taking to allow that to occur now? [00:36:49] Speaker 00: Well, Your Honor, for a few reasons. [00:36:51] Speaker 00: First of all, just to look at PATLEX, of course, when ex parte re-examination was created, there was no prior form of agency reconsideration at all. [00:36:59] Speaker 00: And the patent holder in PATLEX argued [00:37:02] Speaker 00: that the fact that the presumption of validity didn't apply in ex parte re-examination meant that there had been a taking. [00:37:09] Speaker 00: And this court rejected that argument and held that the presumption of validity was merely a procedure, and that the patent holder didn't have a property interest in the procedure by which the validity would be determined. [00:37:21] Speaker 02: There's a difference between the procedure and the substance, though, isn't there? [00:37:25] Speaker 00: Well, exactly, Your Honor. [00:37:26] Speaker 00: And the substance, I think this is really the key point. [00:37:28] Speaker 00: The substantive criteria of patentability, including section 101, [00:37:32] Speaker 00: are the very same criteria that existed when these patents were issued. [00:37:36] Speaker 00: So a patent that was not patent eligible before the AA is also not patent eligible after the AA and vice versa. [00:37:44] Speaker 00: So the substantive criteria are the same. [00:37:46] Speaker 02: The only thing that's changed is... I think the entire patent world would disagree with you. [00:37:51] Speaker 02: I think the substantive criteria was changed significantly by Alice and other cases coming from the Supreme Court. [00:37:58] Speaker 02: I don't think [00:37:59] Speaker 02: the patent community at large would rally behind you and say that the current state of 101 law was the current state of 101 law two decades ago. [00:38:09] Speaker 00: Respectfully, Your Honor, of course, you know, there have been additional decisions by this court and by the Supreme Court. [00:38:15] Speaker 02: Oh, no, we've seen a major sea change, Your Honor, over the last few years. [00:38:20] Speaker 02: So I am hard pressed to imagine that at the time these patents issued, [00:38:26] Speaker 02: their eligibility could have ever been legitimately challenged at that time based on the state of precedent. [00:38:32] Speaker 00: Your Honor, whenever a court interprets a statute, a court's not changing the law. [00:38:38] Speaker 00: The court is saying what the law has always been. [00:38:40] Speaker 02: No, this is a judicially created exception. [00:38:41] Speaker 02: This is a change to the law. [00:38:43] Speaker 02: This is a change to the law. [00:38:44] Speaker 02: A judicially created exception is not the law. [00:38:46] Speaker 02: There is no interpretation of the statute. [00:38:48] Speaker 02: And the Supreme Court doesn't purport that there is one in Section 101. [00:38:52] Speaker 02: The words abstract idea don't appear in Section 101. [00:38:54] Speaker 02: That's a judicially carved out exception. [00:38:56] Speaker 02: The statute would dictate all of these things are in fact eligible because they are processes or methods of operation. [00:39:05] Speaker 02: They fall clearly within the language of the statute. [00:39:08] Speaker 02: So how is a judicially created exception, newly created exception that did not exist, absolutely does not exist in the statute, how is that not a taking? [00:39:18] Speaker 00: Well, Your Honor, just as this court applies Bilski to patents that were issued prior to the decision in Bilski and there's no taking there, [00:39:26] Speaker 00: The same is true when the board applies the current understanding of what Section 101 means to patents that issued prior to those decisions. [00:39:35] Speaker 00: The court isn't changing the law. [00:39:37] Speaker 00: It's interpreting what the law has always been. [00:39:39] Speaker 00: And so respectfully, I think that what the board is doing in a CBM proceeding, poll the audience to see how many people think the law has always been this way in 101. [00:39:54] Speaker 02: I've always been, you know, pre-Alice and post-Alice, the law is the same. [00:39:59] Speaker 00: But Your Honor, I mean, it is true that this court applies the current interpretation by the Supreme Court to all patents, regardless of when they're issued. [00:40:06] Speaker 02: And there isn't a taking involved when this court applies a new... Well, but I'm just wondering if there is when an entirely new regime is created, CBM, [00:40:18] Speaker 02: which adds to the agency's authority, the ability to revoke a patent on a ground it never previously had the authority to revoke the patent on. [00:40:28] Speaker 00: That is not a taking for a couple of reasons. [00:40:30] Speaker 00: First of all, our primary argument is that before the agency would cancel a patent, the agency has determined that the patent was never validly issued. [00:40:41] Speaker 00: And then the patent isn't canceled until this court would affirm that determination. [00:40:46] Speaker 00: So it's just the same as when a district court determines that a patent is invalid and there's no taking there. [00:40:52] Speaker 02: So then is it your view, because you've hinged a lot on the fact that 101 existed, though really wasn't applied the same way when these patents were issued, and 101 was a criteria they needed to overcome, they didn't. [00:41:06] Speaker 02: What if Congress added section 109 to the patent code? [00:41:12] Speaker 02: I don't think there is one, but there might be. [00:41:14] Speaker 02: What if they added a new section of the patent code with a new way to invalidate patents? [00:41:19] Speaker 02: And then what if they gave the PTO the authority in the CBM proceedings to use that new way to invalidate patents? [00:41:26] Speaker 02: Everyone agreed that new way did not exist when the patents issued. [00:41:30] Speaker 02: But Congress makes a change to what kinds of stuff it thinks ought to be patentable. [00:41:34] Speaker 02: Would it be a taking under those circumstances? [00:41:36] Speaker 02: Because you hinged a lot of your argument on the fact that 101 was a criteria at the time these patents issued, so it should be fair for the agency to apply it [00:41:43] Speaker 02: reconsideration setting. [00:41:45] Speaker 02: So what if it weren't a criteria? [00:41:47] Speaker 02: Then would there be a taking? [00:41:48] Speaker 00: Well, that would be an entirely different case than here, because it would be a change. [00:41:51] Speaker 00: But you know what? [00:41:51] Speaker 02: I'm allowed to ask you hypotheticals. [00:41:53] Speaker 02: That's kind of what we do as judges, to test the extent of your arguments. [00:41:56] Speaker 02: So why don't you just assume that's what I'm doing. [00:41:59] Speaker 00: Sure, Your Honor. [00:42:00] Speaker 00: Well, you can rule in our favor without finding that that would not be a taking, because [00:42:08] Speaker 02: No, but answer my question about whether you think it would be a taking. [00:42:11] Speaker 02: Your argument has been presented to us as distinguishing this case from the type of case where it wasn't the same. [00:42:18] Speaker 00: I think that would present a much harder question than this case. [00:42:21] Speaker 02: I'd like to know what the government's thoughts are on that harder question. [00:42:26] Speaker 00: Your Honor, I mean, it would [00:42:33] Speaker 00: I don't know what to say other than it would be a much harder case than this case, because here we don't have a substantive change in the law. [00:42:40] Speaker 00: It's the same criteria. [00:42:41] Speaker 00: It's the same 101 criteria. [00:42:43] Speaker 00: It's the same requirements of novelty and non-obviousness that have existed. [00:42:49] Speaker 02: And another way to think about it, Your Honor, though, is that what's... You see the analogy in my mind that if it's not the same criteria, if there was a major change in the law which was not statutorily based, [00:43:00] Speaker 02: But if a new judicial exception was created to a statute, say that the previous judicial exceptions didn't include abstract ideas. [00:43:08] Speaker 02: Say the previous judicial exceptions didn't say all software is ineligible. [00:43:12] Speaker 02: And say I understood Alice as saying all software is ineligible. [00:43:16] Speaker 02: It is a brand new, undisputedly new judicial exception to patentability. [00:43:22] Speaker 02: I'm not sure we're in a different place. [00:43:23] Speaker 00: But Your Honor, respectfully. [00:43:24] Speaker 02: I'm not sure this isn't that harder a case. [00:43:26] Speaker 00: Respectfully. [00:43:27] Speaker 00: In that situation, the court would apply that new judicial interpretation to all patents, regardless. [00:43:33] Speaker 00: If you take CBM proceedings out of it, just another case that's being appealed from a district court, a district court or this court would apply the current interpretation of what Section 101 means. [00:43:43] Speaker 02: Wouldn't it potentially be a taking there, too? [00:43:46] Speaker 02: When Congress creates a means for eliminating a property right that someone has been given and believes they're entitled to, doesn't that create a taking? [00:43:56] Speaker 00: If Congress, I think there's a difference between if Congress created, if Congress changed the law and acted in a new statute, that's different than when courts are interpreting the law. [00:44:05] Speaker 02: Courts are saying what the law... No, no, courts create judicial exceptions to the law. [00:44:10] Speaker 00: Respectfully, Your Honor, though, and the current... Yeah, no, I agree with you. [00:44:13] Speaker 02: I don't understand under what authority courts can create judicial exceptions. [00:44:17] Speaker 00: But respectfully, courts are, courts apply the current understanding of the law to the patents regardless of when they issued, and it's the way that courts work is that that [00:44:26] Speaker 00: is a statement about what the law has always been, and it's not treated as a change in the law. [00:44:31] Speaker 00: And I think the same thing would be true here. [00:44:36] Speaker 00: Another way this court could look at it. [00:44:37] Speaker 06: Let me shift gears for a bit, because I think your time is running short. [00:44:43] Speaker 02: No, it's not, because he reset it. [00:44:44] Speaker 02: He gave him all the time that guy had, and then all the time that she had. [00:44:47] Speaker 02: So it's got like alt-A. [00:44:48] Speaker 02: OK. [00:44:50] Speaker 00: Good. [00:44:50] Speaker 06: I do have one more point I want to make. [00:44:53] Speaker 06: In your brief, you said trading technologies forfeited its constitutional challenges by failing to raise them before the board. [00:45:03] Speaker 06: Yes, Your Honor. [00:45:05] Speaker 06: Does the board as an administrative agency have jurisdiction to pass on constitutionality of federal statutes? [00:45:13] Speaker 02: How about you? [00:45:14] Speaker 00: It does, Your Honor. [00:45:15] Speaker 00: I'm glad to have the opportunity to address this issue. [00:45:18] Speaker 00: So in our view, if the [00:45:21] Speaker 00: If trading technologies had raised this argument before the board, the board could have declined to institute CBM review or it could have, if it was after institution, the board could have reconsidered and terminated the proceedings. [00:45:33] Speaker 00: So it wouldn't have been futile because the agency had statutory authority to do something about the argument. [00:45:39] Speaker 00: There are cases in which courts have said that agencies generally do not have authority to address the constitutionality of statutes. [00:45:47] Speaker 00: But the Supreme Court has made clear in Thunder Basin and in Elgin, and I have those citations for you. [00:45:51] Speaker 00: That's 510 U.S. [00:45:53] Speaker 00: 200. [00:45:53] Speaker 00: That's Thunder Basin and Elgin 567 U.S. [00:45:56] Speaker 00: 1. [00:45:58] Speaker 00: The Supreme Court made clear in both of those cases that the general rule that agencies don't have authority to address the constitutionality of statutes is, quote, not mandatory. [00:46:08] Speaker 00: And in Thunder Basin, the court approvingly cited the fact that the agency in that case had addressed constitutional issues before. [00:46:15] Speaker 00: In addition, this court in Reagan, the Office of Senate Fair Employment Practice, which is 61F31563, this court held that the agency at issue there could consider a facial equal protection challenge to a statute in the course of an agency administrative proceeding. [00:46:31] Speaker 00: So I do not, there is no categorical bar against agencies considering constitutional challenges to statutes. [00:46:38] Speaker 00: In addition, in NRADBC, of course, [00:46:41] Speaker 00: This court held that a constitutional argument was forfeited because the party hadn't raised it before the Board of Patent Appeals and Interferences. [00:46:49] Speaker 00: We think that the same rule applies here and I just want to make clear that we do think this isn't a case where it would have been futile for them to raise it because they could have declined to institute the proceeding and that would have, you know, obviated the constitutional injury that they're claiming of. [00:47:06] Speaker 00: But in addition, one last point. [00:47:07] Speaker 02: Do you think their argument is sufficiently raised in the blue brief? [00:47:10] Speaker 02: I mean, I've never seen a constitutional argument been given three sentences in the blue brief and been found to have been thoroughly fleshed out such that we should not apply the doctrine of constitutional avoidance, but rather take it head on at that point. [00:47:24] Speaker 02: What are your thoughts about whether it was waived in the blue brief? [00:47:27] Speaker 00: Your Honor, I think that they put the absolute bare minimum that they could in this case. [00:47:31] Speaker 00: Bare minimum would suggest it's enough. [00:47:34] Speaker 00: Bare minimum would be enough. [00:47:35] Speaker 00: You know, I don't know. [00:47:36] Speaker 06: They hardly raised the issue. [00:47:39] Speaker 00: I agree, Your Honor. [00:47:41] Speaker 00: The government would be happy if this court found that they had not raised it sufficiently. [00:47:45] Speaker 00: We haven't made that argument in our briefs. [00:47:48] Speaker 00: We've made the argument that their failure to raise it before the agency constituted a forfeiture. [00:47:53] Speaker 00: But if this court finds that their failure to flesh it out in their briefs is also a forfeiture, we would certainly agree with that. [00:48:00] Speaker 00: I just wanted to make one last point on the forfeiture argument that we did make. [00:48:04] Speaker 00: which is that the Supreme Court in Elgin also recognized that even when it would be futile for a party to raise a constitutional argument before an agency, even when it would be futile, there are still benefits to requiring litigants to raise arguments before an agency. [00:48:19] Speaker 00: And that's because an agency can apply its expertise to threshold questions, to the statute at issue, and to related issues that can then aid a court in addressing the constitutional issue on appeal. [00:48:29] Speaker 00: And of course here, if the board had had the opportunity to address the constitutional issue and had determined that there was no constitutional issue, this court would have had the opportunity to review that full decision on appeal. [00:48:47] Speaker 02: Okay, thank you very much. [00:48:49] Speaker 02: Well, Mr. Gannon has rebuttal time. [00:49:03] Speaker 07: With respect to the 374, I just want to respond to a couple of points that IB made in their letter brief. [00:49:11] Speaker 07: IB primarily relied on the lack of static price access in the claims of the 374. [00:49:17] Speaker 08: What difference does that make? [00:49:19] Speaker 07: It's not presidential. [00:49:23] Speaker 07: It's something that IB relied on. [00:49:25] Speaker 07: And I'm just pointing out that the 411 patent in the IBG case also didn't have static. [00:49:31] Speaker 07: It didn't matter because the claims had specificity. [00:49:34] Speaker 07: They were still solving problems, the same types of problems. [00:49:38] Speaker 07: And it's really a form over substance type argument. [00:49:43] Speaker 07: IB is essentially asking for reconsideration here from what they already lost. [00:49:48] Speaker 07: By them saying, oh, statics not in this claim. [00:49:51] Speaker 07: Well, and I think IB is actually moving for reconsideration on that point. [00:49:56] Speaker 07: We'll see how that goes. [00:49:58] Speaker 07: But arguing it here is just asking for reconsideration. [00:50:02] Speaker 07: One thing IB's letter brief doesn't address is the claims. [00:50:07] Speaker 07: They don't address the claims, the specificity in the claims of the order entry region along an axis where you have a plurality of sequential price levels mapped to those graphical locations or single action order entry to set the price and send the order when you click on the graphical location. [00:50:28] Speaker 07: Their letter brief is silent on all the details of the [00:50:30] Speaker 07: And I think that's telling. [00:50:33] Speaker 07: The board errors here. [00:50:35] Speaker 07: Number one, the board said, there's no problem disclosed in the PAC. [00:50:40] Speaker 07: There's no issue with figure two. [00:50:42] Speaker 07: That's been rejected repeatedly by this court. [00:50:45] Speaker 07: The board also erred by finding that there was no technological solution. [00:50:49] Speaker 07: The board basically said, well, this claim just requires the use of known technology. [00:50:54] Speaker 07: You can use mice, or you can use a laptop, or any kind of computer. [00:50:58] Speaker 07: Completely missed the solution. [00:50:59] Speaker 07: which is the specific structure, makeup, and functionality of the GUI that solves the problem in the specification. [00:51:08] Speaker 07: With respect to 101, and of course we don't even get to 101 on the 374, but I just wanted to point out that IB admitted that the 374 is no different than the patents in IBG for purposes of 101. [00:51:25] Speaker 07: And I have a site for that. [00:51:26] Speaker 07: Um, if you'd like it's trading, uh, training technologies relevant. [00:51:30] Speaker 07: You can't stipulate to law. [00:51:32] Speaker 02: Well, it's a legal question. [00:51:33] Speaker 02: You can't, they can't stipulate to law. [00:51:35] Speaker 02: You don't mean because they stipulated to law, even if they did, which I know he would say he didn't, but well, they, they said for purposes of one-on-one, they told the district court a question of what question of law, right. [00:51:45] Speaker 07: And that there's no difference between the pounds, uh, with respect to the 999 and the 056, the freezing pounds. [00:51:57] Speaker 07: I want to respond to the letter brief. [00:52:01] Speaker 07: Again, IB's letter brief. [00:52:03] Speaker 07: They basically say, well, IBG doesn't apply because these patents don't have static and single action. [00:52:09] Speaker 07: Again, that's irrelevant. [00:52:12] Speaker 07: IB's arguing that we're saying that all GUIs are technological. [00:52:17] Speaker 07: That's not TT's position. [00:52:20] Speaker 07: What IB cites to in their letter brief is the Amarith case. [00:52:24] Speaker 07: And that I want to focus on because [00:52:27] Speaker 07: That case found that the patent was a covered business method. [00:52:31] Speaker 07: And why is that? [00:52:33] Speaker 07: It was conventional computer components applied to a well-known business practice. [00:52:39] Speaker 07: It was these menus for ordering and putting those menus on an off-the-shelf computer. [00:52:45] Speaker 07: And this court said, in that case, that is a covered business method. [00:52:49] Speaker 07: There's no technology. [00:52:52] Speaker 07: And the reason why it wasn't found to be technological is there was nothing in the claim [00:52:57] Speaker 07: saying how to improve the display. [00:53:00] Speaker 07: There was nothing in the claim saying, how do you improve it? [00:53:03] Speaker 07: Our claims in the 999 and the 056 are nothing like that. [00:53:07] Speaker 07: These claims have a specific way. [00:53:10] Speaker 07: They claim a specific way how to improve the graphical user interface. [00:53:16] Speaker 07: Our claims are not just trading electronically using a GUI or taking an off-the-shelf computer and then trading. [00:53:26] Speaker 07: If that was our claim, [00:53:27] Speaker 07: It would be a different issue on CBM our claims are very specific the 999 Patent starting with that it's displaying the bids and ask along a scale price axis selecting an order icon Moving it along the axis to set a price at a new location that speeds up order entry And I want to just be very clear on this point the patent [00:53:53] Speaker 07: says in the spec at column one, lines 59 to 63, a system is needed in which trend information of market demand for an individual item is provided to traders in an intuitive format, an intuitive format which allows traders to quickly interpret market, excuse me, intuitive format which allows traders to quickly interpret how market demand is changing to an item. [00:54:20] Speaker 07: At column two, lines 39 to 41, [00:54:24] Speaker 07: The spec says the user interface of the present invention presents this information in an intuitive format, allowing the trader to make informed decisions quickly. [00:54:34] Speaker 07: And that's exactly what these claims are directed to. [00:54:36] Speaker 07: It's a specific arrangement of elements with specific functionality. [00:54:41] Speaker 07: In the 999, it's grabbing orders and moving them to a new spot, selecting a price. [00:54:46] Speaker 07: In the 056, it is displaying the market and using a default quantity. [00:54:52] Speaker 07: and selecting a price again by selecting along a price axis, again speeding up order entry. [00:54:59] Speaker 07: These intuitive displays and speeding up order entry is exactly what was found in Data Engine. [00:55:07] Speaker 07: As I mentioned earlier, Data Engine, the tab, the notebook tab on these electronic spreadsheets was found to be a highly intuitive user-friendly interface. [00:55:17] Speaker 07: Core Wireless is another GUI case. [00:55:20] Speaker 02: That court found that the invention of the 347 patent, the agency found that mapping is not the same thing as displaying on page 14 and spanning 15 of the agency's decision on this. [00:55:34] Speaker 02: Why doesn't that make this patent different? [00:55:38] Speaker 02: I mean, just because it shares the same spec, claims can be directed to different inventions, and some inventions can be eligible and some not. [00:55:45] Speaker 02: In fact, I've written at least one opinion where some claims in the patent were eligible and some claims in the patent weren't. [00:55:50] Speaker 02: So the fact that it has the same spec doesn't get you over the hurdle. [00:55:54] Speaker 02: If these particular claims don't really have the same technological advances as those others, are they really a technological invention? [00:56:05] Speaker 02: The PTO said no and cited differences. [00:56:08] Speaker 07: Yeah, I think that's where the PTO erred. [00:56:11] Speaker 07: The PTO didn't understand or appreciate that the claims required sequential price levels that are mapped to the graphical locations along an axis. [00:56:21] Speaker 02: Well, they say they lay out their claim constructions, which they say were in their institution decision, and then they say the patent owner does not dispute our understanding of the claims, which was explicitly set forth in our institution decision. [00:56:35] Speaker 07: I believe on the mapping element, that's correct. [00:56:37] Speaker 07: The mapping element is you have sequential price levels mapped to locations along an axis. [00:56:43] Speaker 02: But what they're saying is claim one does not require that graphical locations display the price levels that are mapped to them, any other information or even any indication to which of those graphical locations corresponds to bids and which corresponds to ads. [00:56:53] Speaker 07: Well, I don't agree with that. [00:56:55] Speaker 07: The patent is very clear that you have to display graphical [00:57:01] Speaker 07: Graphical locations. [00:57:02] Speaker 02: The graphical locations could simply be black boxes with price values associated with them and no information provided to the user indicating the price value, the order quantity, or any order type. [00:57:12] Speaker 02: The patent owner does not dispute our understanding of the claims, which was set forth explicitly in the institution decision. [00:57:16] Speaker 02: So now you're saying you do, in fact, dispute it, or you're saying you did, in fact, dispute it? [00:57:21] Speaker 07: We're disputing the fact that the board missed that this invention is solving the problem. [00:57:27] Speaker 02: No, that doesn't answer my question. [00:57:29] Speaker 02: The board expressly held that this particular set of claims was different from the ones in CQG and the ones therefore that were also before us in IBG in a important and meaningful way. [00:57:42] Speaker 02: And they're saying, and you did not dispute that understanding of the claims. [00:57:48] Speaker 07: Our understanding of the claim is exactly what I'm [00:57:50] Speaker 07: What I'm trying to say. [00:57:51] Speaker 02: But your understanding of the claim today is not relevant. [00:57:54] Speaker 02: What's relevant to me is did the board err in concluding that you didn't dispute the claim? [00:57:59] Speaker 02: Because if you didn't make an argument to the PTO, you've waived it for purposes of appeal. [00:58:04] Speaker 02: The board said here you didn't dispute their understanding, which was set forth in the institution decision. [00:58:09] Speaker 02: That understanding would make a difference to the outcome of this case. [00:58:12] Speaker 07: There is no dispute in this case about the meaning. [00:58:15] Speaker 07: There was no claim construction issue on the mapping or what gets displayed. [00:58:20] Speaker 02: What if what the board said about the claims then what how can you continue to claim this is the exact same? [00:58:25] Speaker 02: Case focusing on the claim language and their instance set out in the institution decision understanding of the differences between the mapping and the displaying and those requirement there is there is a difference in the claim what we're saying is the difference doesn't matter for purposes of CBM and the reason why is why it changes the nature of those claims it changes maybe [00:58:49] Speaker 07: Maybe the scope for maybe infringement, very similar to the 411 pattern. [00:58:54] Speaker 02: But it goes right to the heart of what the CQG opinion said was the invention in the case. [00:59:02] Speaker 07: The CQG opinion. [00:59:04] Speaker 02: What it said caused eligibility and caused the computer improved function. [00:59:08] Speaker 07: The improved computer function in CQG was when you selected a location on a screen, the price wouldn't flip out. [00:59:17] Speaker 07: from under you. [00:59:17] Speaker 07: And when you map sequential price levels to a graphical location such that the mapping doesn't change when the market changes, you're solving that problem. [00:59:27] Speaker 07: You're just doing it in different words, just a different claim. [00:59:33] Speaker 02: You seem to be doing it in different words, but the PTO expressly said those different words mattered and resulted in something different. [00:59:38] Speaker 02: And you didn't dispute it, is what they said. [00:59:40] Speaker 07: We didn't have an issue. [00:59:41] Speaker 07: There wasn't an issue with claim construction. [00:59:43] Speaker 02: Well, no, because you didn't see how it was going to play out. [00:59:46] Speaker 02: You didn't realize you'd be in this situation. [00:59:48] Speaker 02: So you didn't dispute it back then because you didn't realize it was going to be a problem. [00:59:50] Speaker 02: But now, it looks like it might be a problem for you. [00:59:52] Speaker 07: It's not a problem. [00:59:53] Speaker 07: It's not a problem because, again, the claim requires sequential price levels mapped to the order entry regions along the screen, along an axis. [01:00:04] Speaker 07: And so when the user goes to click on that area, the mapping doesn't change when the market changes. [01:00:10] Speaker 07: So it's true. [01:00:11] Speaker 07: We didn't have an issue on claim construction, per se, with the board. [01:00:16] Speaker 07: But we disagree with their result. [01:00:19] Speaker 06: Are you saying there's a difference without a difference? [01:00:23] Speaker 07: For purposes of solving the problem, exactly. [01:00:29] Speaker 02: OK. [01:00:30] Speaker 02: I think all three council cases take another submission.