[00:00:04] Speaker 01:
Okay, the first argument case this morning is number 181489, Trading Technologies International Against IBG LLC.

[00:00:14] Speaker 01:
Mr. Gannon.

[00:00:21] Speaker 03:
Good morning, may it please the court.

[00:00:24] Speaker 03:
The 382 patent has the same specification that was at issue in the CQG case and at issue in IBG 1.

[00:00:33] Speaker 03:
And it's the same, it's the same, the claims of the 382 patent are most closely like the claims in CQG and IBG 1 and IBG 1.

[00:00:43] Speaker 01:
So how did that work in the PTAB?

[00:00:46] Speaker 01:
As far as the timing was concerned, did they have the prior decisions or any of them before them when they got to this case?

[00:00:54] Speaker 03:
They did have the CQG decision when they got to this case, correct your honor.

[00:01:00] Speaker 05:
On page 39 of the blue brief,

[00:01:03] Speaker 05:
You say the five, five, six claims are not directed to any business practice or implementing a business practice on a computer.

[00:01:11] Speaker 05:
But the spec continuously describes part of the invention as known.

[00:01:16] Speaker 05:
For example, it says in column five, lines 13 and 14, that it uses conversion techniques known in the art.

[00:01:25] Speaker 05:
How is this not implementing a known business practice?

[00:01:30] Speaker 03:
The specification makes clear that this improved tool, this tool that you interact with, the tool for the trader, can be run on any conventional computer.

[00:01:41] Speaker 03:
The data can be mapped to the screen in any conventional way.

[00:01:45] Speaker 03:
But what the invention is about is solving problems with prior art graphical user interfaces.

[00:01:51] Speaker 05:
It doesn't improve the way a GUI operates, does it?

[00:01:55] Speaker 03:
It actually does, Your Honor.

[00:01:57] Speaker 03:
In prior trading systems, I'll give you an example.

[00:02:00] Speaker 05:
It improves what it displays, correct?

[00:02:04] Speaker 03:
Actually, Your Honor, the invention actually improves the trading interface.

[00:02:11] Speaker 05:
How does the code change?

[00:02:13] Speaker 03:
Actually, how the code is actually implemented to carry out the tool, this inventive tool, can be done in different ways.

[00:02:21] Speaker 03:
What's important is that, for example,

[00:02:24] Speaker 05:
The problem is the GUI code change.

[00:02:27] Speaker 05:
Pardon me?

[00:02:27] Speaker 05:
How does the graphical user interface operating code change?

[00:02:31] Speaker 03:
So for example, your honor, in the prior art figure two style screen, there was a problem with accuracy, the way that graphical user interface was constructed.

[00:02:42] Speaker 03:
And it caused the users, when they went to click on the figure two style screen, to miss their price.

[00:02:48] Speaker 03:
Because the inside market was fixed on a screen, the prices would be flipping,

[00:02:53] Speaker 03:
So when the trader went to trade the trader would miss her intended price So that's a problem with how this how the interface was constructed now of course a coder can code that tool in many different ways But that's not what the invention is about the invention is about solving a problem with these prior art interfaces now in CQG

[00:03:18] Speaker 05:
the claims required uh... static price access by gb says page forty one three uh... that in your view this structure are just the icons in a chart makeup is just how these things are arranged and the function is merely what happens when these alleged structures are manipulated by a user why isn't that a valid statement it's not valid your honor because i think what you're referring to i'd be was referring to

[00:03:47] Speaker 03:
the decisions in this case that found some of TT's patents not to solve problems, not to solve technical problems with technical solutions.

[00:03:57] Speaker 03:
For example, in IBG 2 and IBG 3, this court found that those patents, unrelated to this patent, were merely displaying data, organizing data, not solving problems with the graphical user interface.

[00:04:14] Speaker 04:
so that's what we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're we're

[00:04:40] Speaker 04:
seems to me you don't have any choice but to agree with us that we're bound by the two precedential opinions and if you can't get around those then you can't prevail here.

[00:04:52] Speaker 03:
So we can we do get around those precedential opinions because those patents are distinguishable from the patents in this case.

[00:05:01] Speaker 04:
Well what 22

[00:05:05] Speaker 04:
page 57 says at page 12, it distinguishes the earlier opinions as involving claims

[00:05:20] Speaker 04:
when the says quote when the price changes solves the purported problem as it does not specify what happens immediately after the price changes and it seems to me that that's true here that the language for example that was relied on by the northern district of Illinois in the CQG case isn't present in the claims here

[00:05:46] Speaker 03:
So so your honor I believe you're referring to the three seven four patent which is another patent with the same specification and an ibg to this court found that those claims did not recite they didn't display any information on the screen to the trader no price information there was basically just black boxes

[00:06:05] Speaker 03:
And the patent didn't have a static price access, which I believe is what you were referring to.

[00:06:15] Speaker 04:
No, that's not what I was referring to.

[00:06:17] Speaker 04:
What the opinion 2257 says is even if there's the static price access, that the claims that it was dealing with there didn't say what happened after the price change.

[00:06:35] Speaker 04:
What I'm suggesting to you is that the same thing is true here, that it doesn't say anything about what happens after the price changes.

[00:06:45] Speaker 03:
Here's the difference, Your Honor.

[00:06:46] Speaker 03:
The 374 did not require a static price axis.

[00:06:50] Speaker 04:
Well, that's open to question.

[00:06:53] Speaker 04:
The language seemed to, it didn't use the word static, but it did say mapping the plurality of sequential price levels does not change.

[00:07:05] Speaker 03:
That's right.

[00:07:06] Speaker 03:
And what the court said was the 374 patent does not recite static.

[00:07:12] Speaker 03:
And so we don't know what happens with the mapping after the price changes.

[00:07:16] Speaker 04:
Well, I don't think that's an accurate description of the opinion.

[00:07:19] Speaker 04:
It says that the claims here don't tell you what happens after the price changes.

[00:07:29] Speaker 03:
That was the finding with respect to the 374 patent.

[00:07:35] Speaker 03:
This patent, the 382 patent, like CQG, claims a static price access.

[00:07:44] Speaker 04:
That's not sufficient.

[00:07:46] Speaker 04:
The question is whether it tells you what happens after the price changes.

[00:07:49] Speaker 04:
It doesn't include

[00:07:51] Speaker 04:
the language of claim one of the 132 patent that the district court relied on in the CQG

[00:08:08] Speaker 03:
382 patent well let me just let me go back to let's go back to the e-speed case first case from this court dealing with the 132 and 304 patent e-speed said the claimed invention features static price levels these unmoving figures have numerous advantages over the prior art first a trader can visually follow the market movement movement second and perhaps most important the trader has confidence and making an offer of

[00:08:37] Speaker 03:
at the intended price.

[00:08:39] Speaker 03:
That's because of the static price axis.

[00:08:43] Speaker 04:
Your problem is that when we address and harmonize our authority in the 2257 precedential decision, that's not what we said.

[00:08:56] Speaker 04:
What we said was that it doesn't tell you what happens after the price changes.

[00:09:03] Speaker 00:
That's right.

[00:09:04] Speaker 04:
And that language

[00:09:06] Speaker 04:
from the 132 that resulted in the non-precedential decisions on which you're relying does not exist in the claims here.

[00:09:19] Speaker 03:
But what does exist in the claims?

[00:09:21] Speaker 04:
That's correct, isn't it?

[00:09:23] Speaker 03:
What does exist?

[00:09:24] Speaker 04:
Is that correct?

[00:09:26] Speaker 03:
Your Honor, I believe, I'm trying to answer your question.

[00:09:30] Speaker 03:
The claim does require static, which means that the price level... But let me answer my question.

[00:09:35] Speaker 04:
The language that we found significant in 2257 that was present in claim one of the 132 patent does not exist here, right?

[00:09:47] Speaker 03:
The mapping language where in the 374 it says the claims are mapped and that mapping doesn't change when the inside market changes.

[00:09:56] Speaker 03:
That exact language isn't in the 382, but it doesn't matter because the 382 patent requires a static price.

[00:10:03] Speaker 04:
But that's the question as to whether the absence of that language does matter.

[00:10:07] Speaker 04:
And it would seem as though in the 2257 decision, we said it does matter.

[00:10:13] Speaker 03:
What happened in the 374 decision was this court said, hey, the 374 patent doesn't require static.

[00:10:22] Speaker 03:
There's nothing displayed on the screen.

[00:10:25] Speaker 03:
So how can it be solving the problem?

[00:10:28] Speaker 03:
And it doesn't require static because we don't know what happens after the price changes.

[00:10:32] Speaker 04:
No, that's not what it said.

[00:10:35] Speaker 04:
It recognized that the static language is different and that this additional language that talks about what happens after the price changes is what differentiates the two cases.

[00:10:47] Speaker 03:
Well, the court did point out that the 374 did not require static.

[00:10:54] Speaker 03:
First of all, that's how the court distinguished the 374 from the CQG and IBG-1 cases.

[00:11:02] Speaker 03:
But then as you note, Judge Dyke, the court did say, well, there is this mapping limitation, but we don't know what happens after.

[00:11:10] Speaker 03:
I agree with that.

[00:11:11] Speaker 03:
That's what the court said with respect to the 374 patent.

[00:11:16] Speaker 03:
I believe the court looking at this 382 patent, which requires a static price axis and order entry regions along the static price axis where you send orders and you actually set prices when you send the order along a static price axis.

[00:11:36] Speaker 03:
That advantage that's discussed in eSpeed, that's discussed in CQG, that's discussed in IB1,

[00:11:43] Speaker 03:
The same advantage is provided by the 382 patent because of the static price axis.

[00:11:53] Speaker 03:
And I'm looking at the claims of the 382.

[00:11:56] Speaker 03:
Again, the 382 claims, I agree they don't require the mapping.

[00:12:00] Speaker 03:
They don't require this language of that the prices are mapped at a time when the inside market changes.

[00:12:08] Speaker 03:
But this claim is different.

[00:12:09] Speaker 03:
The static price axis overrides that.

[00:12:13] Speaker 01:
So on this theory of the case, if we agree in terms of the threshold eligibility, then there's still a question of remand required on the merits, is that right?

[00:12:30] Speaker 03:
With respect to the 101 issue, your honor, if TT prevails on the 101 issue, we believe no remand would be required, because the PTAP found that IB failed to show that this patent was obvious in view of the prior art.

[00:12:47] Speaker 03:
And we believe that there's no basis... But that's disputed, is it not?

[00:12:51] Speaker 03:
It's disputed, but we believe there's no basis to overturn

[00:12:55] Speaker 03:
The P tabs ruling that these claims are not obvious in view of the prior art Which is which is an interesting point with respect to obviousness in that?

[00:13:06] Speaker 03:
with respect to the 101 issue in step 2 whether the inventions are

[00:13:11] Speaker 03:
routine conventional well-understood well that issue is not presented on this appeal is it it is it is an issue the 101 issue is an issue on the obviousness issue but IB couldn't even establish that the invention was obvious let alone well-understood routine conventional one of the curiosities is the use of obvious arguments to justify the 101

[00:13:37] Speaker 01:
Let's hear from the other side.

[00:13:40] Speaker 03:
Okay.

[00:13:40] Speaker 03:
Thank you, Your Honor.

[00:13:47] Speaker 01:
Mr. Picardo.

[00:13:48] Speaker 02:
Good morning.

[00:13:48] Speaker 02:
Byron Picardo on behalf of the FLEs.

[00:13:51] Speaker 02:
May it please the Court.

[00:13:52] Speaker 02:
I respectfully submit that this Court's recent presidential decisions and what the parties are calling IVG 2 and IVG 3 make this a relatively straightforward case for affirmance on the CDM eligibility and the Section 101 issues.

[00:14:06] Speaker 01:
And so why should we rely on precedent going one way rather than precedent going the other way?

[00:14:13] Speaker 01:
Is there a simple distinction in your mind other than the fact that there were different judges making the decisions as to why there was this split?

[00:14:24] Speaker 02:
I think there are two questions there, Your Honor.

[00:14:25] Speaker 02:
And if there is an unresolvable tension, this Court needs to follow its precedential decisions.

[00:14:32] Speaker 02:
Setting that aside, I do think the Court doesn't have to wade into those waters.

[00:14:37] Speaker 02:
If we look at CQG, for example, it's distinguishable from the facts and the patents here.

[00:14:44] Speaker 02:
For example, appendix 38, the board found that claim one of the 382 patent was broader than the 132 patent, which was involved in

[00:14:53] Speaker 02:
the CQG decision and this court's first non-precedential decision in the IBG case.

[00:14:59] Speaker 01:
Non-precedential doesn't mean that we thought that it was incorrectly decided.

[00:15:04] Speaker 01:
It's the other way around.

[00:15:06] Speaker 01:
We thought it was correctly decided.

[00:15:08] Speaker 01:
We just didn't write a detailed opinion of our reasoning.

[00:15:11] Speaker 02:
Understood.

[00:15:12] Speaker 02:
I want to show you why there are some important distinctions with this case that can allow the CQG case that you were contradicting.

[00:15:21] Speaker 05:
One distinction is that they're reciting a method of canceling an order entered for a commodity in an electronic exchange as opposed to the display of the GUI.

[00:15:35] Speaker 02:
Yes, I think that's a good point.

[00:15:37] Speaker 02:
So the trading technology theory of the case is this price flipping that in the prior art, when you went to place orders to buy and sell securities, you might miss your price because the moment you're attempting to click, the price would change.

[00:15:51] Speaker 02:
The problem of cancellation orders missing a price was not present in the prior art, and they haven't adapted their price flipping theory to deal with the cancellation of orders.

[00:16:00] Speaker 02:
In fact, claim one, the method claim of the 382 patent, doesn't have any placement of buy or sell orders in it whatsoever.

[00:16:08] Speaker 02:
So the idea that you're going to miss a price just has no place in the context of claim one.

[00:16:14] Speaker 02:
Secondly, if we look at claim one and compare it to dependent claim eight, the price flipping theory doesn't make any sense because claim one, in that method, there are no displays of prices.

[00:16:22] Speaker 02:
So it doesn't make any sense that a user not seeing prices could somehow solve this supposed price flipping problem of the prior art.

[00:16:32] Speaker 02:
There are some important factual differences between this case and CQG.

[00:16:35] Speaker 02:
So in CQG, the court essentially adopted the findings of the district court.

[00:16:40] Speaker 02:
And the district court there credited the expert testimony of trading technologies, Mr. Thomas.

[00:16:45] Speaker 02:
Mr. Thomas stepped through the price flipping theory.

[00:16:49] Speaker 02:
We don't have any such credited testimony in this case of Mr. Thomas.

[00:16:53] Speaker 02:
The board didn't make that finding.

[00:16:55] Speaker 02:
In fact, it went and made a different finding for which it had substantial evidence.

[00:16:59] Speaker 02:
Its finding was that

[00:17:00] Speaker 02:
Taking the market information and displaying it along an axis was a fundamental economic concept.

[00:17:06] Speaker 02:
That was supported by record evidence, including the Weiss reference, which is in the briefing.

[00:17:12] Speaker 02:
So we can distinguish CQG on the patents and on the record below.

[00:17:17] Speaker 01:
I can appreciate the distinction in the result of the fine points of looking at the claims.

[00:17:23] Speaker 01:
I have trouble with 101 and why there should be a distinction under 101.

[00:17:29] Speaker 02:
okay so uh... if we go back to cqg as i read that case the court there credited the district court's findings the district court found that the particular claims of the one three two and three oh four patent uh... solve this price flipping theory among other things that needed the static price axis uh... there was some factual findings to make that to make that determination because if you look at the specification of

[00:17:56] Speaker 02:
any of the patents in this case, the price-flipping theory is not supported by the specification.

[00:18:00] Speaker 02:
So here, the board credited our conflicting evidence on that point that this was a long-standing economic practice, again, for example, with Weiss.

[00:18:09] Speaker 02:
And I think the board was on solid footing when it didn't credit the Thomas expert declaration that the price-flipping theory had any application to the 382 patent, again, because, for instance, claim one doesn't display any prices, the idea that the trader could.

[00:18:24] Speaker 01:
But that goes to the merits.

[00:18:26] Speaker 01:
the substantive merits of patentability, not the threshold theory of whether you can file an application at all?

[00:18:36] Speaker 02:
Well, I think here it does.

[00:18:37] Speaker 02:
Given the way that Trading Technologies has argued its case, it says that its claims do not focus on an abstract idea because they improve the functioning of the computer.

[00:18:48] Speaker 02:
And that argument reduces to its price flipping theory.

[00:18:51] Speaker 02:
So we do have to deal with the merits of that if we're to contend with the

[00:18:56] Speaker 02:
the issue as trading technologies.

[00:18:58] Speaker 02:
The board was on solid footing not to credit that.

[00:19:00] Speaker 02:
As I said, the prices aren't displayed.

[00:19:01] Speaker 02:
If we look, for example, claim one recites the static price axis, but some of the dependent claims talk about resetting the axis.

[00:19:08] Speaker 02:
Trading Technologies hasn't explained how to reconcile those things, given its static price, which, as I understand their theory, is essential to the missing price or price flipping theory.

[00:19:18] Speaker 02:
Moreover, they have not addressed the problem of

[00:19:21] Speaker 05:
The fact that the method claim one of the 382 patent does not recite trading Yes Footnote six or footnote two on page six you say you don't look during the hearing TT's council was unable to identify the amount of market information that is required to be displayed in claim one and you you recite me to

[00:19:46] Speaker 05:
Appendix 637 to 643 58 3 to 64 18 I couldn't find that in there and I asked my clerk to and she couldn't So we're in that spread

[00:20:03] Speaker 05:
is TT Council's inability.

[00:20:06] Speaker 02:
Yeah, I'll confess, I don't have that information handy.

[00:20:10] Speaker 02:
I'd be happy to submit it, have my colleague look for it and stand up later in the hearing, or submit a letter to the court pinpointing that, if that would be helpful.

[00:20:19] Speaker 01:
Would you like elaboration by?

[00:20:22] Speaker 05:
Well, if they can find it during the rest of the oral argument, you can counsel me.

[00:20:33] Speaker 02:
I may have it for you.

[00:20:34] Speaker 02:
Go ahead.

[00:20:36] Speaker 02:
I've been appointed to Appendix 641.

[00:20:38] Speaker 02:
And I believe the relevant section begins at Line 18 of 641 and continues on to 642.

[00:21:07] Speaker 02:
If I may like to quickly touch on CBM eligibility, the major theme emerging from IBG 2 and 3, the precedential decisions, is that GUIs that prove the trader but not the computer do not enjoy the technological invention exception.

[00:21:31] Speaker 02:
of Section 18 of the AIA, and that's true here of the 382 patent.

[00:21:37] Speaker 02:
Trading Technologies advances really only two arguments about why its invention is technological.

[00:21:41] Speaker 02:
The first being that it takes traders' working orders and puts them on the static price axis.

[00:21:47] Speaker 02:
as the board found that was nothing more than displaying information and that was not a technical problem.

[00:21:52] Speaker 02:
That's the final decision at 27.

[00:21:55] Speaker 02:
It's not disputed that Prior Art GUI's had that information in the same GUI as the trading information along an axis.

[00:22:01] Speaker 02:
It can't be a technological problem to simply display that information in a new fashion.

[00:22:07] Speaker 02:
They have the price flipping theory.

[00:22:08] Speaker 02:
I've touched on that why that simply has no application in the 302 patent and I don't want to belabor some of the quotes that we've

[00:22:15] Speaker 02:
put in our supplemental briefing, but I think if you look at the way they describe their own invention, it's quite clear that what this invention is about is about improving trader and not the computer.

[00:22:24] Speaker 02:
For example, Mr. Thomas at JA8963 said that knowing the prices will not change at the moment the trader enters

[00:22:33] Speaker 02:
in order, engenders confidence, and reduces trader hesitation."

[00:22:37] Speaker 02:
He continued, this allowed the trader to intuitively sense market movements, thereby enhancing the user's ability to identify and quickly act upon opportunities.

[00:22:46] Speaker 02:
That's all about improving the trader.

[00:22:49] Speaker 02:
So this patent does not enjoy the technological exception.

[00:22:52] Speaker 02:
The board did not abuse its discretion.

[00:22:54] Speaker 02:
It was not arbitrary and capricious in so finding.

[00:22:57] Speaker 02:
If we turn to the Section 101 issues,

[00:23:01] Speaker 02:
Like the claims in IBG 2 and 3, these are all about receiving generic market information, displaying that on an axis, and allowing the user to interact with that GUI using conventional input techniques like mouse commands.

[00:23:15] Speaker 02:
And if the board found that that was a fundamental economic practice, we see that twice.

[00:23:19] Speaker 02:
If we look at the holdings of IBG 2 and 3, it's of the same flavor.

[00:23:24] Speaker 02:
And IBG 2 talked about claims that recite new arrangements of generic information that assist traders in processing information.

[00:23:32] Speaker 02:
That's the focus as an abstract idea.

[00:23:34] Speaker 02:
It's exactly what the claims are about here.

[00:23:37] Speaker 02:
It's like the claims in IBG 3, where instead of having price information, it was profit and loss information that was displayed.

[00:23:43] Speaker 02:
This board said that simply displaying new or useful information doesn't take an invention out of the realm of abstract ideas.

[00:23:50] Speaker 02:
And this patent is really just like that.

[00:23:52] Speaker 02:
We had the working orders.

[00:23:55] Speaker 02:
That information was available, and all they've done is put it in a new and maybe highly relevant place, if you will.

[00:24:02] Speaker 02:
It's just like the 768 patent of that case.

[00:24:05] Speaker 04:
And finally... How many more of these trading technology cases are working their way through the system?

[00:24:11] Speaker 02:
I believe this is the last one.

[00:24:13] Speaker 02:
There may be some trailer re-hearing petitions from trading technologies, but aside from that, I understand this to be the last case.

[00:24:22] Speaker 05:
We'll hold you to that.

[00:24:26] Speaker 02:
And finally, the board was supported by substantial evidence when it found there was no inventive concept.

[00:24:31] Speaker 02:
As the patent states, the inventions are implemented on conventional hardware.

[00:24:36] Speaker 02:
It talks about the fact that the programming is insignificant, and that this court ought to affirm on the 101 issues as well.

[00:24:44] Speaker 02:
Unless there's any additional questions, I'll allow the government to address the constitutional issues.

[00:24:49] Speaker 01:
OK.

[00:24:49] Speaker 01:
Thank you.

[00:24:50] Speaker 01:
We will hear from Ada Reiner, Ms.

[00:24:52] Speaker 01:
Patterson.

[00:24:57] Speaker 01:
And so why has the government intervened in this case?

[00:25:01] Speaker 00:
Solely to address the two categories of constitutional claims that trading technology raised in its opening brief for the reasons we said.

[00:25:09] Speaker 04:
And which it didn't argue this morning.

[00:25:11] Speaker 00:
And what?

[00:25:11] Speaker 04:
Which it didn't argue this morning.

[00:25:13] Speaker 00:
And which it didn't argue this morning.

[00:25:15] Speaker 00:
We do think the court should hold these forfeited for the reasons set out in our brief.

[00:25:18] Speaker 00:
So I'm happy to stand on our briefs if the court has no questions about forfeiture or about the merits of the constitutional questions.

[00:25:25] Speaker 01:
So have you intervened to justify the different decisions in the different cases?

[00:25:31] Speaker 01:
What is the interests of the United States?

[00:25:33] Speaker 01:
in the complexities that these various cases have brought to the courts with different results.

[00:25:42] Speaker 01:
What's the position of the United States?

[00:25:45] Speaker 01:
That they should be different?

[00:25:46] Speaker 01:
That they should be the same?

[00:25:49] Speaker 00:
On the merits of the patentability questions here?

[00:25:51] Speaker 01:
On the result.

[00:25:52] Speaker 01:
The result.

[00:25:53] Speaker 01:
Whether we're talking about, when you say merits, you mean section 101 or some other section of the statute.

[00:25:59] Speaker 00:
On the merits, the disposition of these cases, the United States takes no position.

[00:26:03] Speaker 00:
There was a challenge under federal rule of appellate procedure 44.

[00:26:07] Speaker 00:
to the constitutionality.

[00:26:09] Speaker 01:
Speak up a little.

[00:26:10] Speaker 01:
Pardon?

[00:26:10] Speaker 01:
I said, speak up a little.

[00:26:11] Speaker 00:
Oh, there was a challenge under Rule 44 to the constitutionality of the America Invents Act on several grounds.

[00:26:18] Speaker 00:
So the United States used its authority under 28 USC 2403 to intervene solely on the basis to defend the constitutionality of the statute.

[00:26:28] Speaker 00:
That is our only interest in this case, and those are the only matters we've briefed.

[00:26:33] Speaker 01:
So the government's position is that this patentee

[00:26:37] Speaker 01:
could not come into court, is that right, under 101?

[00:26:42] Speaker 00:
I'm not sure I understand your honor's question.

[00:26:44] Speaker 00:
We think the patentee can certainly- That's the issue before us, right?

[00:26:47] Speaker 01:
It was dismissed under 101.

[00:26:49] Speaker 00:
Yes, and we think the court- we have no quarrel with the court reviewing the board's 101 analysis.

[00:26:55] Speaker 00:
Again, there's been an attack on the constitutionality of the AIA, and that is the issue on which we've intervened.

[00:27:01] Speaker 00:
We are not taking a position or in any way suggesting the court can't address the 101 issue pending before it.

[00:27:09] Speaker 01:
Okay, you're not taking a position.

[00:27:11] Speaker 00:
Correct, Your Honor.

[00:27:12] Speaker 01:
The government doesn't care that there are all sorts of different results in different tribunals?

[00:27:19] Speaker 00:
Your Honor, I think the government does have a more general interest in 101, but it has not intervened in this case under Section 143 to address the merits or to defend the merits of the board's decision.

[00:27:29] Speaker 01:
You're saying the Constitution authorizes that the unpredictability of these results is

[00:27:38] Speaker 01:
are inherent in the statute and should be supported.

[00:27:43] Speaker 00:
Well, again, Your Honor, we're taking no position on 101.

[00:27:46] Speaker 00:
This court, if it feels that there are inconsistent results, of course, this court can reverse decisions of the board.

[00:27:54] Speaker 00:
We are here solely to defend on the retroactivity and the appointments clause challenges that the appellant raised here.

[00:28:02] Speaker 01:
But the decision of the board conforms with some precedent.

[00:28:06] Speaker 01:
They're saying it doesn't matter.

[00:28:08] Speaker 00:
Your Honor, I want to push back on the idea that we don't care.

[00:28:11] Speaker 00:
There are thousands of decisions issued by the board.

[00:28:14] Speaker 00:
The director has the ability but is not required to intervene in any appeal from a board decision.

[00:28:20] Speaker 00:
And we simply have not used that authority here.

[00:28:23] Speaker 00:
So I'm not simply not authorized to take a position on 101 or any of the merits questions beyond the constitutional matters in this case.

[00:28:34] Speaker 00:
If the court has no questions about either forfeiture or those constitutional matters, we're happy to rest on our briefs in this case.

[00:28:41] Speaker 01:
Of course, the question is raised.

[00:28:44] Speaker 01:
The real question is, I'm still not sure of the government's position.

[00:28:47] Speaker 01:
However, we're out of time.

[00:28:50] Speaker 01:
Thank you.

[00:28:50] Speaker 01:
Thank you, Your Honor.

[00:28:56] Speaker 01:
Mr. Gannon?

[00:28:57] Speaker 01:
I'd like to.

[00:28:59] Speaker 03:
Thank you your honor.

[00:29:00] Speaker 03:
I'd like to pick up on a question judge Wallach asked about this cancellation in the prior art when you had an order entry tool Your working orders were in a different window and what that meant was if a trader had to access that Working order they had to navigate to a different window Squares if you had two screens you can have them both open at the same time

[00:29:22] Speaker 03:
You could have them open at the same time if you could fit them on your screen, I suppose, Your Honor.

[00:29:26] Speaker 03:
But still, you have to navigate to this working order book.

[00:29:30] Speaker 03:
You have to scroll to find your order.

[00:29:32] Speaker 03:
And in the prior art, it took multiple actions to cancel.

[00:29:36] Speaker 03:
This invention has a specific structure where you have the working order, the entered order indicator, along the static price axis.

[00:29:45] Speaker 03:
and paired with single-click functionality.

[00:29:48] Speaker 03:
And here's why that's important, Your Honor.

[00:29:50] Speaker 03:
When you have your order entry tool and you're watching the market ebb and flow up and down, this invention puts your working order right next to that price level, and you can quickly get out of the market.

[00:30:03] Speaker 04:
I understand what you're saying, but it does seem to me that that's a different problem.

[00:30:08] Speaker 04:
than the earlier patents addressed, which had to do with orders and possible mistake in clicking on the wrong price.

[00:30:16] Speaker 03:
Absolutely, I agree 100%.

[00:30:18] Speaker 03:
This patent is solving an additional problem from the accuracy problem that I was talking about earlier.

[00:30:25] Speaker 03:
This claim has all of that.

[00:30:27] Speaker 03:
It has static price axis.

[00:30:29] Speaker 03:
It's got order entry regions along the static price axis.

[00:30:32] Speaker 03:
When you click to enter an order, your working order pops up on the same screen.

[00:30:38] Speaker 03:
And if you see the market moving around and you need to get out of your position, you can single click and get out.

[00:30:43] Speaker 03:
That was huge.

[00:30:45] Speaker 03:
I invite you to look at the declarations in the record of traders that said this was an amazing improvement over the prior art.

[00:30:55] Speaker 03:
Just the single action cancel alone.

[00:30:58] Speaker 03:
And lastly, I'm running out of time here.

[00:31:02] Speaker 03:
But with respect to the 101 issue, if I may, here's the root problem with what the other side is saying.

[00:31:07] Speaker 03:
They're saying our claims are directed to the use of a GUI and a method of placing an order based on displayed market information, as well as updating the market information.

[00:31:18] Speaker 03:
So they're saying that our claims are just displaying market information

[00:31:22] Speaker 03:
updating it and sending orders.

[00:31:24] Speaker 03:
That's not what our claims are directed to.

[00:31:27] Speaker 03:
If you look at the level of specificity in this claim, static price access, order entry region, working order along the static price access that gives you these advantages, there is no way you can conclude that this is a fundamental economic practice

[00:31:44] Speaker 03:
on a generic computer.

[00:31:46] Speaker 03:
This functionality didn't exist.

[00:31:47] Speaker 03:
It's no different than core wireless.

[00:31:50] Speaker 03:
It's no different than data engine, precedentialist decisions from this court.

[00:31:54] Speaker 03:
In fact, in the data engine case, the court quoted

[00:31:57] Speaker 03:
It talked about the core wireless case and said the invention in core wireless spared the users from the time-consuming operations of navigating to Opening up and then navigating within each separate application.

[00:32:10] Speaker 03:
That's exactly what we have here The system is improved because now everything's in one interface.

[00:32:17] Speaker 03:
It's improvement It's an improvement over the prior art and under this court's precedent that clearly meets 101

[00:32:25] Speaker 01:
Okay.

[00:32:26] Speaker 01:
Thank you.

[00:32:27] Speaker 01:
Thank you all.

[00:32:28] Speaker 01:
The case is taken into submission.