[00:00:32] Speaker 03:
Okay, the next case is number 16, 1616, Trading Technologies International against CQG, Incorporated.

[00:00:41] Speaker 03:
Mr. O'Quinn.

[00:00:43] Speaker 04:
Thank you, Judge Newman.

[00:00:44] Speaker 04:
May it please the Court, John O'Quinn, on behalf of CQG.

[00:00:48] Speaker 04:
When the District Court rendered its decision nearly two years ago, it did not have the benefit of this Court's many intervening precedents applying ALICE, particularly recent cases such as electric power group

[00:00:59] Speaker 04:
and Apple versus Amaranth, which are indistinguishable from this case.

[00:01:04] Speaker 04:
If it had, it would recognize that the claims here adhere to a familiar formula, which this court time and again has found is ineligible for patenting.

[00:01:12] Speaker 04:
Specifically, the purported invention in this case is directed to the abstract concept of displaying and updating commodities, market information, and placing an order.

[00:01:22] Speaker 04:
And it is implemented using entirely.

[00:01:24] Speaker 01:
But doesn't this, the asserted claims,

[00:01:28] Speaker 01:
solve specific problems of prior graphical user interface devices in the context of computerized training relating to speed, accuracy, and usability?

[00:01:42] Speaker 04:
So Judge Wallach, there's nothing about the claims at issue here that affect the speed or the operation of the computer.

[00:01:51] Speaker 04:
This is a case that is entirely unlike Enfish, where there was something that was inventive about the particular combination of software

[00:01:57] Speaker 04:
that change the functioning of the computer itself.

[00:02:01] Speaker 04:
And indeed, as the PTAB noted in instituting CBMR reviews here, quote, they do not contend the claim that mentions somehow changes the way the computer functions.

[00:02:12] Speaker 04:
And that's at appendix 3127.

[00:02:13] Speaker 04:
There's nothing about these claims that change how the computer operates.

[00:02:19] Speaker 04:
What has changed is the content that is being displayed on a computer.

[00:02:24] Speaker 04:
And does this court recognize that?

[00:02:26] Speaker 04:
Well, it's not how it's being displayed, Judge Wallach, because I think just as an electric power group, this court recognized that even though you were now having to display, you had to have concurrent visualization, and there was specific information that had to be displayed in specific fields, nonetheless, in electric power group, the court was very clear.

[00:02:47] Speaker 04:
It used existing display technology.

[00:02:49] Speaker 04:
It used existing programming techniques.

[00:02:52] Speaker 04:
and that there was nothing that was inventive that was added to the abstract concept.

[00:02:57] Speaker 04:
Now, I recognize that the district court here disagreed with us at both step one and step two.

[00:03:02] Speaker 04:
But clearly, when you look at this court's intervening precedents, Apple versus Amaranth, I think, is a great example of this.

[00:03:10] Speaker 04:
Decided just at the end of November, electric power group, as well as, frankly, BASCOM itself.

[00:03:18] Speaker 02:
When you look at those cases,

[00:03:21] Speaker 02:
DDR Holdings and FISH, they all seem to be on the other side of the aisle.

[00:03:26] Speaker 04:
Well, I think, Judge O'Malley, that with respect to BASCOM and DDR Holdings, both recognize that claims with more specificity than the claims at issue here were still nonetheless directed to abstract concepts.

[00:03:41] Speaker 04:
Now, DDR Holdings and BASCOM then went on and at step two found that there was an inventive step.

[00:03:48] Speaker 04:
And the reason was because in those cases, there was a specific particular algorithm that was disclosed, and it was claimed in the claims themselves.

[00:03:58] Speaker 04:
And the court recognized that this was not simply generic implementation of computer functionality.

[00:04:04] Speaker 04:
And indeed, I think Infish, of course, is a step one case.

[00:04:09] Speaker 04:
But Electric Power Group at 1354th of that opinion talks about how Infish was focused not on asserting advances

[00:04:17] Speaker 04:
in uses to which existing computer capabilities could be put, but on a specific improvement in how computers carry out one of their basic functions.

[00:04:26] Speaker 04:
There is no improvement here to how computers carry out their basic functions.

[00:04:31] Speaker 04:
It is simply take a pointing and click display of any kind, any grid you could use, any kind of spreadsheet, any kind of point and click technology.

[00:04:42] Speaker 04:
What is different here

[00:04:45] Speaker 04:
is the information that is being displayed.

[00:04:48] Speaker 04:
And I think that if you look at this court's opinion.

[00:04:50] Speaker 02:
I'm still thinking more like Bascom and DDR holdings with respect to this analysis.

[00:04:58] Speaker 02:
And I understand that district court went to both steps.

[00:05:01] Speaker 02:
And it could be that I'm totally off base here.

[00:05:03] Speaker 02:
But this is the problem.

[00:05:05] Speaker 02:
This is a question I've asked in trying to sort out our case line where the lines are drawn.

[00:05:11] Speaker 02:
But is it conceivable that the initial

[00:05:14] Speaker 02:
computerization that uses general computer technology would not be patent-eligible.

[00:05:22] Speaker 02:
So for instance, like the case we had last year, Chicago Board.

[00:05:27] Speaker 02:
And you'd say, all you're doing is taking the very concepts that are used on the floor and putting them into basic computer technology.

[00:05:33] Speaker 02:
But then you see that something, as in DDR holders, that there's a weakness in that computer

[00:05:41] Speaker 02:
technology and you take a new step in the computerization, an inventive step to make that computer program work better.

[00:05:49] Speaker 02:
Can that then be computer eligible or patent eligible even if the first stage was not?

[00:05:55] Speaker 04:
Sure, no.

[00:05:56] Speaker 04:
I appreciate the question Judge O'Malley and let me be clear.

[00:05:59] Speaker 04:
I agree with I think what's implicit in your question.

[00:06:02] Speaker 04:
I don't think this is a step one case.

[00:06:04] Speaker 04:
I think this is directed to an abstract idea and the question then is

[00:06:09] Speaker 04:
Is there the something more that the Supreme Court has required in Alice and Mayo?

[00:06:15] Speaker 04:
And I'd point you to this court's opinion in Affinity Labs versus DirecTV, because I think it addressed a somewhat similar issue.

[00:06:22] Speaker 04:
And there, writing for the court, Judge Bryson noted that, quote, there was no specification of particular technology for getting the desired content displayed.

[00:06:33] Speaker 04:
And he said, quote, the essential advance is not in the process of, in that case, it was downloading applications,

[00:06:38] Speaker 04:
but only in the content of the particular application.

[00:06:42] Speaker 04:
And I think that's what you have here.

[00:06:44] Speaker 04:
There's nothing here that goes to an improvement of how the computer itself functions.

[00:06:50] Speaker 04:
There's no, I click and it happens faster.

[00:06:53] Speaker 04:
There's no displaying of the information that happens faster.

[00:06:57] Speaker 04:
There's no transmission of information to the commodities exchange that happens faster.

[00:07:04] Speaker 04:
Now it may be that by visually displaying this information,

[00:07:07] Speaker 04:
in a particular way, just like visually displaying a number to call on a television in a particular large font, might be the kind of thing that is helpful to the person who's using it.

[00:07:22] Speaker 04:
But that's certainly not the test, as this court recognized in Sequinon versus Ariosa.

[00:07:29] Speaker 04:
And to come back to, I think, what's at the core of your question, Judge O'Malley,

[00:07:36] Speaker 04:
This court applying Supreme Court precedent has made clear what is not sufficient to constitute an inventive step.

[00:07:45] Speaker 04:
And there are three things in particular.

[00:07:48] Speaker 04:
One is adding another abstract idea.

[00:07:51] Speaker 04:
And certainly simply having a static price axis, which is what the district court pointed to as being the inventive step at step two, is directed towards another abstract idea.

[00:08:03] Speaker 04:
Second is limiting it to a particular operating environment.

[00:08:06] Speaker 04:
Under Supreme Court precedent, it's very clear that simply limiting it to a particular field is not sufficient for an inventive step.

[00:08:17] Speaker 04:
And the third, and the one that this court has dealt with extensively in a number of cases over the last 18 months, is the implementation of generic conventional activity, and particularly generic conventional computer activity.

[00:08:32] Speaker 04:
And that is, again, a fundamental difference between this case and DDR Holdings and BASCOM.

[00:08:38] Speaker 04:
In DDR Holdings, this court recognized that there was a particular series of, in this court's case in Capital One, page 1371, it described DDR Holdings as, quote, reciting a specific series of steps that resulted in a departure from the routine and conventional sequence of events

[00:09:02] Speaker 04:
after the click of a hyperlink.

[00:09:04] Speaker 04:
You had a specific algorithm that changed the basic operation.

[00:09:08] Speaker 04:
And here, again, you're taking any grid, any display using any technology, and this is at column four.

[00:09:17] Speaker 04:
You can use any existing or future terminal or device.

[00:09:21] Speaker 04:
It is to use, quote, simple algorithms.

[00:09:24] Speaker 04:
That's column four, line 62 of the 132 patent.

[00:09:27] Speaker 04:
And the mapping of the information to a screen grid can be done by, quote, any technique known to those at skill in the art.

[00:09:34] Speaker 04:
Column 4, line 66 of the 132 patent.

[00:09:38] Speaker 04:
That is exactly generic conventional computer implementation.

[00:09:43] Speaker 04:
And I think that makes this case indistinguishable from Amaranth and from Electric Power Group.

[00:09:50] Speaker 04:
Indeed, in Amaranth, the court specifically noted

[00:09:55] Speaker 04:
that the use of conventional hardware and commonly known programming techniques, even though it resulted with menus with specific features, the menus were visually different than things that existed in the prior art, but nonetheless.

[00:10:08] Speaker 01:
Supposing it solves specific problems of prior graphical user interfaces in the context of computerized trading relating to speed, accuracy, and usability, which I'm obviously quoting from the court,

[00:10:25] Speaker 01:
And, by the way, see Infish, because it's improving the computer operation.

[00:10:33] Speaker 04:
Well, so first, Judge Wallach, with respect to Infish, there is no improvement of the computer operation, and I think that's an important distinction here to recognize.

[00:10:44] Speaker 04:
The implementation of the point-and-click technology on this particular visual display

[00:10:51] Speaker 04:
does exactly what point and click technology would otherwise do.

[00:10:55] Speaker 04:
There is nothing remotely inventive about how the computer itself operates in response.

[00:11:02] Speaker 04:
Now, the argument is, well, because you have visually laid out the information in a particular way, that a human is going to be able to react more quickly, or at least be able to react differently, because of how the information is laid out.

[00:11:18] Speaker 04:
Now, there may be other areas of intellectual property law that protect such a thing, but it's not the type of thing that itself renders claims patent eligible.

[00:11:30] Speaker 04:
And indeed, the fact that this happens to be in, of course, the computing environment

[00:11:36] Speaker 04:
isn't disposed of here.

[00:11:38] Speaker 04:
That was certainly true in internet patents itself.

[00:11:40] Speaker 02:
There never was a well-established, long-known practice that allowed this information to be provided in this fashion when you were doing trading on the trading floor, right?

[00:11:53] Speaker 04:
Well, Judge O'Malley, to be sure that the computer trading has differences from trading that happened on the floor.

[00:12:02] Speaker 04:
And I'm certainly not arguing anything to the contrary.

[00:12:05] Speaker 04:
What I am arguing are these are claims

[00:12:06] Speaker 04:
that are directed to the organization and display of information.

[00:12:11] Speaker 04:
This court time and again has found that that is directed towards an abstract concept.

[00:12:16] Speaker 04:
And then the question is, under the tests that this court has repeatedly articulated, is there something more here?

[00:12:23] Speaker 04:
And the something more that they point to is either the static price axis, which is just another abstract concept, or it is generic computer implementation

[00:12:33] Speaker 04:
of generic functionality.

[00:12:35] Speaker 04:
And I would also note that the visual display of this information, the way that they display it, itself isn't something that is new or inventive.

[00:12:44] Speaker 04:
And indeed, if you look at the blue brief at page 37, the right-hand side, you see prior systems that visually displayed the information a particular way.

[00:12:55] Speaker 04:
Their idea here is to add existing generic point-and-click functionality to it, and I think under

[00:13:03] Speaker 04:
particularly Amaranth and an electric power group, that's indistinguishable from what this court found was not patent eligible.

[00:13:11] Speaker 04:
I'm happy to take more questions.

[00:13:12] Speaker 04:
Otherwise, I'll reserve the balance of my time.

[00:13:14] Speaker 03:
All right, let's hear from the other side.

[00:13:16] Speaker 03:
We'll save you rebuttal time.

[00:13:18] Speaker 04:
Thank you, Judge Newman.

[00:13:27] Speaker 03:
Ms.

[00:13:27] Speaker 03:
Arner.

[00:13:28] Speaker 00:
Good morning.

[00:13:40] Speaker 00:
May it please the court?

[00:13:42] Speaker 00:
CQG's arguments are undercut by at least three things.

[00:13:46] Speaker 00:
The first is the patents, which describe and solve the problem of creating a trade order at an unintended price using prior art GUIs that allowed prices to change during order creation.

[00:13:59] Speaker 00:
The second is the district court's decision, which properly recognized that after Alice and DDR, these claims are patent eligible because

[00:14:09] Speaker 00:
They solve that unintended price problem with an improved GUI that combines static prices and dynamic quantity indicators in a single action order entry system.

[00:14:23] Speaker 02:
Affinity Labs is your hardest case, I would think, and certainly one of the most recent.

[00:14:28] Speaker 02:
I know we were laughing about, don't give us any more supplemental authority from either side, because the cases just keep coming out and coming out.

[00:14:36] Speaker 02:
But that's a tough case for you, because that actually talks about specific uses of graphical user interfaces, or GUIs, as you call them.

[00:14:45] Speaker 02:
I've never phrased it that way.

[00:14:49] Speaker 02:
How do you distinguish Affinity Labs?

[00:14:52] Speaker 00:
Yes, so we distinguish it because Affinity Labs, the graphical user interface used there was purely conventional.

[00:15:02] Speaker 00:
As the court said in that case, there was no specification of a particular technology for getting the defined content displayed.

[00:15:10] Speaker 00:
When you looked at the overall character of the invention in that Affinity Labs case, which is what the court did, they found that the invention was really to

[00:15:19] Speaker 00:
out of range streaming to cell phones, that that was really the problem they said they solved.

[00:15:24] Speaker 00:
And yet their claims did not explain how that out of range streaming happened.

[00:15:28] Speaker 00:
And to the extent there was a generic graphical user interface recited, it was just that, a generic computer component, which was not enough to provide a significantly more at step two.

[00:15:40] Speaker 00:
I think we would have the same problem here if our claims stopped at the end of our preamble.

[00:15:45] Speaker 00:
And if I could turn you to the claim language,

[00:15:47] Speaker 00:
That's what I'd like to do next if we look at the 304 claim one which I'll point to you to red 20 to 21 has that in prose and if you prefer the patent it's in the appendix at 223 So I think we would be just like affinity labs if our claim was to be just the preamble which says a method for displaying market information and facilitating trading I'm skipping some words on a graphical user interface and

[00:16:17] Speaker 00:
Certainly, that alone is not patent eligible.

[00:16:19] Speaker 00:
And I think that's what the Affinity Labs case stands for.

[00:16:23] Speaker 00:
Instead, the claim recites much more.

[00:16:26] Speaker 00:
And before I turn to that, I'd also like to mention the electric power case, which was mentioned as something new that the district court didn't have.

[00:16:34] Speaker 00:
And I think in electric power, the court drew the distinction very well by saying that in electric power, the claims were not patentable.

[00:16:42] Speaker 00:
Presenting the results, and I'm quoting electric power,

[00:16:45] Speaker 00:
presenting the results of abstract processes of collecting and analyzing information without more.

[00:16:51] Speaker 00:
And then in parentheses, the court said such as identifying a particular tool for the presentation is abstract.

[00:16:58] Speaker 00:
And so in electric power, the court kind of drew this distinction, which I think applies to affinity labs on the one hand, where the graphical user interface is simply a generic computer component that displays

[00:17:10] Speaker 00:
the results of this or the inputs needed for this out-of-band streaming.

[00:17:15] Speaker 00:
Whereas in the Trading Technologies claims, it is not at all because we have a GUI that we're new.

[00:17:22] Speaker 00:
We have an improved GUI.

[00:17:24] Speaker 00:
And if I can point you to the claims, I'll explain what we mean.

[00:17:27] Speaker 00:
So looking at the first claim in the 304 patent at appendix 223 or red 20, whichever is easier for you to read, we talk about the GUI itself being the invention here.

[00:17:39] Speaker 00:
And it's because it solves the problem of missing your intended price with the prior art GUIs through a combination of the structure, makeup, and functionality of this GUI.

[00:17:50] Speaker 03:
So when you emphasize the 304 patent, are you restoring the distinction between the 304 and the 132?

[00:17:58] Speaker 00:
No, I just wanted to start with one of the claims.

[00:18:00] Speaker 00:
If you would prefer, I can talk about the 132 instead.

[00:18:02] Speaker 03:
Because the PTAB distinguished between them.

[00:18:09] Speaker 03:
essentially sustaining one and not the other.

[00:18:13] Speaker 03:
At least one can read that into their refusing institution for the 304.

[00:18:19] Speaker 00:
The PTAB later instituted a CBM on the 304 as well and currently there are PTAB proceedings on PTAB.

[00:18:25] Speaker 03:
That's what I gather and understand that there are several.

[00:18:29] Speaker 03:
What is the status of the ongoing, the various PTAB

[00:18:34] Speaker 00:
So the current PTAP proceedings pending on the 304 and the 132 patent have been argued and are awaiting final written decision.

[00:18:43] Speaker 00:
The final written decision in the 304 case is due later this month.

[00:18:48] Speaker 00:
January 27th is the statutory deadline, so any time between now and then.

[00:18:53] Speaker 00:
And in that case, actually, the petitioner, the patent owner, pointed out to the board that the district court had found these claims eligible under 101.

[00:19:03] Speaker 00:
And the board said in a footnote when instituting anyway on 101 grounds that they gave little to no deference to the district court's finding and instituted anyway.

[00:19:13] Speaker 00:
So that one will be decided this month.

[00:19:16] Speaker 00:
And the 132 is due in March.

[00:19:21] Speaker 03:
That's an unresolved issue as to who defers to who.

[00:19:26] Speaker 03:
We'll get to that eventually.

[00:19:28] Speaker 00:
And I would contend that here you have an Article III district court

[00:19:31] Speaker 00:
decision based on Supreme Court in this Court's precedent and the Court is well positioned to affirm the District Court here.

[00:19:39] Speaker 03:
Okay, so what you're telling us about 304, you would also apply to the 132.

[00:19:43] Speaker 03:
It would, yes.

[00:19:45] Speaker 00:
Yes, it would.

[00:19:46] Speaker 00:
In both of the claims, they recite the combination of specific structure, makeup, and functionality that solve the problem in the prior ART GUIs that's identified in the patents in Figure 2 in the description.

[00:19:58] Speaker 00:
So turning to the 304 claims,

[00:20:00] Speaker 00:
We talk about structure, makeup, and functionality.

[00:20:03] Speaker 00:
This is all about how the pieces of the GUI is what we think of as the structure.

[00:20:09] Speaker 00:
The makeup is how those pieces are put together to form the GUI.

[00:20:12] Speaker 00:
And then the functionality is what the GUI does.

[00:20:15] Speaker 00:
And so if you look with me at the claim, in the first claim element, dynamically displaying a first indicator in one of a plurality of locations in a bid display region.

[00:20:26] Speaker 00:
So I would say that first indicator and the bid display region are both pieces of the structure.

[00:20:31] Speaker 00:
Other structure, the pieces of the GUI, later in that same claim element, a common static price axis.

[00:20:38] Speaker 00:
In the next claim element, we have a second indicator that is dynamically displayed in one of a plurality of locations in an ask display region.

[00:20:48] Speaker 00:
And then later in the claim, we have in the fourth step displaying an order entry region.

[00:20:54] Speaker 00:
comprising a plurality of locations for receiving commands.

[00:20:57] Speaker 00:
So each of those is a piece of the GUI, the structure of the GUI.

[00:21:00] Speaker 00:
The makeup is how those are combined to create the specific GUI in these claims.

[00:21:06] Speaker 00:
So if we go back to the first claim element, we talked about the indicator and the bid display region.

[00:21:11] Speaker 00:
The claim goes on to say that each location in the bid display region corresponding to a price level

[00:21:18] Speaker 00:
along a common static price axis.

[00:21:21] Speaker 00:
So that is talking about how the bid display region, where the indicators can move, is aligned and corresponding to price levels along the axis.

[00:21:30] Speaker 00:
So we're talking about how these pieces are combined.

[00:21:33] Speaker 00:
That's the makeup.

[00:21:34] Speaker 00:
And that's carried out throughout the claims.

[00:21:38] Speaker 00:
I would point to the third element, displaying bid and ask display regions.

[00:21:43] Speaker 00:
Those display regions are displayed in relation to fixed price levels positioned along

[00:21:48] Speaker 00:
the common static price axis.

[00:21:50] Speaker 00:
So there's this combination of static price levels along the axis, and then these bid display regions that are displayed relative to them.

[00:21:58] Speaker 00:
And then there's functionality as well.

[00:22:00] Speaker 00:
So there are the pieces, there are the way they're combined, and then the functionality.

[00:22:04] Speaker 00:
So in that third step in claim one, when the inside market changes, the price levels along the common static price axis do not move.

[00:22:13] Speaker 00:
But at least one of the indicators in the bid display and ask display region do move.

[00:22:18] Speaker 00:
That's the relative movement, and that's actually required by the claim.

[00:22:22] Speaker 02:
We understand what the claims do.

[00:22:25] Speaker 02:
The question is whether they do enough.

[00:22:27] Speaker 02:
So do you think that your argument is better under step one or step two?

[00:22:34] Speaker 00:
I think the argument is very strong under step one, particularly in light of the court's more recent decisions.

[00:22:41] Speaker 00:
I really think the district court's decision was prescient here, when you see that she applied

[00:22:47] Speaker 00:
Alice and DDR, which is what we had at the time, and found that under DDR especially, these claims improve a technology.

[00:22:55] Speaker 00:
They improve a graphical user interface, looking at the overall character of the claims, and that an improvement to a prior art technology is patentable even at step one.

[00:23:04] Speaker 03:
But this judge drew a clear and accurate in accordance with our precedent line between 101 and the 102 and 103 issues that I gather were not reached.

[00:23:16] Speaker 00:
That's right.

[00:23:17] Speaker 00:
I think she properly understood what the Supreme Court has said multiple times, and this court as well, that novelty is not the question, non-obviousness is not the question.

[00:23:27] Speaker 00:
And I think she did that by looking back at the Supreme Court cases, and particularly in Alice, where the court drew a line between a business method with generic computer, which it found not patentable, and inventions that purport to improve computer functioning or

[00:23:43] Speaker 00:
other computer technology.

[00:23:44] Speaker 00:
That's the Supreme Court's language in Alice.

[00:23:46] Speaker 00:
They were pointing to those kinds of cases.

[00:23:49] Speaker 00:
And I would say even in Bilski, the court was talking about a concern over not taking a machine or transformation test because it might adversely affect the patentability of software.

[00:23:58] Speaker 00:
And that was still a possibility.

[00:24:00] Speaker 00:
And this court's recognized that.

[00:24:01] Speaker 03:
So what happened to those issues?

[00:24:02] Speaker 03:
Were they not raised before the judge?

[00:24:05] Speaker 00:
102 and 103?

[00:24:06] Speaker 00:
Yes.

[00:24:07] Speaker 00:
Those did not go to trial.

[00:24:09] Speaker 00:
OK.

[00:24:09] Speaker 00:
And so 101 was what was the only issue on appeal here.

[00:24:15] Speaker 00:
And the judge properly noted that she talked about the static price axis, if we need to go to step two, which she found was not necessary.

[00:24:24] Speaker 00:
But if you do, if it's a close call, like in BASCOM, we can move to step two.

[00:24:29] Speaker 00:
She said she didn't need to look any further than when she started looking at the claims themselves, the elements, that the static price axis

[00:24:37] Speaker 00:
was a feature that provided the solution to the problem that the patents describe.

[00:24:42] Speaker 00:
And that, I think, if you look at the cases, that's a common theme we see.

[00:24:47] Speaker 00:
When you're looking for an inventive concept at step two to figure out if it's enough, is it the thing that solves the problem that's described in the patent and the specification?

[00:24:59] Speaker 00:
So in Bascom, for example, where all of the elements were known individually, the combination solved

[00:25:05] Speaker 00:
the internet filtering problem that the patent described, and that was enough.

[00:25:09] Speaker 00:
Here, the judge properly noted that the static price access, and I would say, among other things, it's actually the combination of the static access with the dynamic prices and the single action order entry.

[00:25:21] Speaker 00:
This is a problem unique to single action order entry systems.

[00:25:25] Speaker 00:
And with respect to preemption, which is one of the things covering all implementations of the purported abstract idea,

[00:25:33] Speaker 00:
I would point the court, of course they're not binding, but the court has previously looked at these patents before in the infringement context and found, several times actually, and found that some products do infringe but other products were found not to infringe, several others.

[00:25:48] Speaker 00:
And there are others that are listed in the brief.

[00:25:51] Speaker 00:
in the red brief that show that these are not impermissibly preemptive and that they belie the argument by CQG that all of the trading systems are covered or all ways of displaying trade information and placing an order.

[00:26:06] Speaker 01:
For me, the core issue here is the difficulty in articulating ways in which we do not discourage useful advances in the art.

[00:26:19] Speaker 01:
And that's where these cases are all grinding against me.

[00:26:24] Speaker 00:
Many of them are very close calls.

[00:26:25] Speaker 00:
I understand that.

[00:26:26] Speaker 00:
And that's evidenced by the sometimes dissenting opinions and sometimes very similar opinions.

[00:26:32] Speaker 00:
I don't think this one is a particularly close call when you actually look at the claims and see the specificity with which the claims recite the particular pieces, the structure of the GUI, the way they are combined, the makeup, and the functionality.

[00:26:48] Speaker 00:
All of that's required.

[00:26:49] Speaker 00:
I'd like to discuss the Amaranth case for a moment, because that was discussed in the opening.

[00:26:54] Speaker 00:
And I think that one can be distinguished easily as the others, in that it had sort of a similar business method on a computer.

[00:27:02] Speaker 00:
And in fact, the court said specifically, the invention merely claims the addition of conventional computer components to well-known business methods.

[00:27:11] Speaker 00:
While they talked about displaying menus, and they talked about receiving parameters using an interface,

[00:27:18] Speaker 00:
That was not detailed.

[00:27:20] Speaker 00:
That was not the invention.

[00:27:21] Speaker 00:
The invention there was creating these menus, finding better ways than using paper menus with waiter's pens and pencils and waiter's memories.

[00:27:31] Speaker 00:
That was really the invention there.

[00:27:33] Speaker 00:
So I think one of the things that is such a judgment call is determining the overall character of the invention.

[00:27:38] Speaker 00:
And that's where the step one, step two maybe is a little bit of an overlap.

[00:27:41] Speaker 00:
But here, to determine the character of the invention, you look at the patent as a whole.

[00:27:45] Speaker 00:
It describes a very specific problem.

[00:27:47] Speaker 00:
And the claims, as the district court understood correctly, claim a specific combination of features in the GUI that solve that problem.

[00:27:58] Speaker 00:
And to me, that problem solution is a helpful framework for explaining.

[00:28:03] Speaker 00:
And then to the point of the computer functioning, the argument that these don't improve a computer functioning, I think maybe what they're trying to say there is to improve computer technology, you have to improve the computer processor.

[00:28:15] Speaker 00:
You have to make the processor faster.

[00:28:17] Speaker 00:
But that doesn't work at all if you look at this court's decisions.

[00:28:20] Speaker 00:
And the court has found patentable improvements to a database, improvements to, and even DDR was an improvement to the web browser software.

[00:28:28] Speaker 00:
It didn't make the computer processor faster.

[00:28:31] Speaker 00:
And so I think really the way to think about an improvement to a computer functioning is, is there something that makes a part of a computer function differently?

[00:28:40] Speaker 00:
And in DDR, absolutely, the hyperlink function differently because of the software.

[00:28:44] Speaker 00:
And in Enfish, the database function, the database.

[00:28:48] Speaker 01:
I remember in the 1980s when Apple announced the hyperlink.

[00:28:54] Speaker 01:
And I looked at it and thought, this is fabulous.

[00:28:57] Speaker 00:
Many of these inventions are groundbreaking when they first come out.

[00:29:00] Speaker 00:
But after that, we fall to that language in 101 where it's an improvement of, right?

[00:29:04] Speaker 00:
And here, that's what we have, an improvement of a prior GUI.

[00:29:07] Speaker 00:
The GUI is a computer function.

[00:29:09] Speaker 00:
It is a part of a computer.

[00:29:10] Speaker 00:
The court has found their generic interfaces are not patentable.

[00:29:13] Speaker 00:
It's just like a server by itself is not patentable or a database.

[00:29:16] Speaker 00:
That's not what this case is.

[00:29:18] Speaker 00:
I think this is the case that some of these others have been sort of pointing to as this is not that.

[00:29:24] Speaker 00:
I have come over my time, so I'd be happy to answer any other questions.

[00:29:28] Speaker 03:
Any questions?

[00:29:30] Speaker 03:
Thank you, Ms.

[00:29:30] Speaker 03:
Arner.

[00:29:31] Speaker 03:
Thank you.

[00:29:40] Speaker 04:
Thank you again Judge Newman.

[00:29:49] Speaker 04:
So Trading Technologies' argument is that their claims are different from ones that have been found to not be patent ineligible because they require a specific GUI with specific features where they solve problems that existed in prior GUIs.

[00:30:03] Speaker 04:
Now that exact argument could have been made and indeed in many respects was made in electric power group, in affinity labs,

[00:30:10] Speaker 04:
in linden tree, in content extraction, in Capital One, and in internet patents.

[00:30:15] Speaker 02:
But what happens really, I think, in these cases, and this is where I want you to focus, is that you get these briefs, and the arguments are fabulous.

[00:30:24] Speaker 02:
And you say, too bad, the claims don't actually incorporate any of those great, fabulous things that they're arguing about.

[00:30:32] Speaker 02:
And so in this case, you do have

[00:30:36] Speaker 02:
an issue that you're up against which is you actually have some detailed claims that recite very specific things unlike many of the others where

[00:30:46] Speaker 02:
You had the classic wide-open claims that didn't say much of anything, and they're trying to save them after the fact.

[00:30:54] Speaker 02:
So how do you respond to the fact that these claims are as detailed as they are?

[00:30:58] Speaker 04:
So Judge O'Malley, just like an Amarant, just like an electric power group, just like an Ultramershal, yes, the claims may be lengthy, and there may be a lot of specific things that are in there.

[00:31:09] Speaker 04:
But the specific things that are in there go to, for example, content.

[00:31:14] Speaker 04:
They don't go to a technological innovation.

[00:31:17] Speaker 04:
And so if you look at Amaranth, the court said, quote, the patents claim systems including menus with particular features.

[00:31:25] Speaker 04:
There were very particular features that the claims required.

[00:31:27] Speaker 04:
They had the nesting of these menus.

[00:31:30] Speaker 04:
There had to be a linking of these menus.

[00:31:32] Speaker 04:
But the court said, quote, they do not claim a particular way of programming or designing the software to create the menus that have those features.

[00:31:41] Speaker 04:
And thus, we're not paneligible.

[00:31:42] Speaker 04:
And that's what you have here.

[00:31:44] Speaker 04:
Let's be clear.

[00:31:45] Speaker 04:
For all their talk about structure, what they're talking about is content.

[00:31:50] Speaker 04:
The claims here require commodities trading using a GUI with generic point and click features that have been programmed by any means with any generic tools operated on any generic computer using any generic screen displaying standard market information in a conventional format.

[00:32:08] Speaker 04:
That is exactly, time and again, what this Court has recognized is not sufficient.

[00:32:13] Speaker 04:
And simply saying, solving the problem that was disclosed in the specification, well, that can't be enough.

[00:32:19] Speaker 04:
I mean, this Court almost unanimously, in Sequinon versus Ariyosa, made clear that that can't be enough.

[00:32:25] Speaker 04:
And there was far more discovery there than there is here, which is essentially just the internet equivalent of saying, hey, with an older generation of technology, you just said,

[00:32:37] Speaker 04:
Here's the 1-800 number.

[00:32:39] Speaker 04:
The claim requires that it be in bold font and stay up on the screen for a long period of time so users don't miss it so they can pick up the phone and make the call to make a trade.

[00:32:50] Speaker 04:
That's what's going on here.

[00:32:51] Speaker 04:
And indeed, if you look at electric power group, I think what it said in that case is equally applicable here.

[00:33:01] Speaker 04:
You have none of the how.

[00:33:04] Speaker 04:
that's required to be transformative in terms of the computer operation or any of the other technology at issue.

[00:33:12] Speaker 04:
Quote, the claims at issue do not require any non-conventional computer network or display components.

[00:33:18] Speaker 04:
That's true here.

[00:33:20] Speaker 04:
Nothing in the claims understood in light of the specification requires anything other than off-the-shelf conventional computer network and display technology.

[00:33:28] Speaker 04:
And that was even for claims that specifically required

[00:33:32] Speaker 04:
quote, displaying concurrent visualization of two or more types of information, which was supposedly novel in that case.

[00:33:40] Speaker 04:
I think electric power group is thus indistinguishable, as is this court's decision in Amaranth.

[00:33:47] Speaker 03:
Well, what we generally see in response to such an argument are issues of 102 and 103, as well as 101.

[00:33:56] Speaker 03:
But here, the decision is made to concentrate on 101.

[00:34:00] Speaker 04:
So Judge Newman, there were invalidity arguments under 102, 103, and 112 that had been issued in the case.

[00:34:10] Speaker 04:
When the case was presented to the jury, the strategic decision was made not to advance those arguments in front of the jury.

[00:34:16] Speaker 04:
And of course, parties and patent litigation make those strategic decisions every day.

[00:34:21] Speaker 04:
And as Your Honor noted in the questions that you were asking to my colleague,

[00:34:26] Speaker 04:
The 102 and 103 and 112 inquiry is utterly irrelevant to the 101 inquiry.

[00:34:32] Speaker 04:
And the Supreme Court couldn't possibly be clearer in Parker versus Fluke, in Diamond v. Deere, and in Mayo.

[00:34:39] Speaker 04:
And so the fact that we did not advance those types of arguments has no bearing whatsoever on the 101 issues before the court today.

[00:34:48] Speaker 03:
Yes, and the district judge recognized that.

[00:34:51] Speaker 04:
I don't think that there's any dispute about the notion that the 102 and 103 type arguments have no bearing here.

[00:34:58] Speaker 04:
And indeed, part of the reason that we made that point is it was indeed an opposing counsel in their briefing that argued that that somehow gave more weight to these claims.

[00:35:07] Speaker 04:
And I think that's inconsistent with this court's approach for the reasons that you've noted, Judge Newman.

[00:35:13] Speaker 04:
If the court has further questions, I'm happy to answer those.

[00:35:16] Speaker 03:
Any more questions?

[00:35:18] Speaker 03:
Any more questions?

[00:35:19] Speaker 03:
OK.

[00:35:19] Speaker 03:
Thank you.

[00:35:20] Speaker 03:
Thank you very much.

[00:35:21] Speaker 03:
Thank you, Mr. O'Quinn, Ms.

[00:35:22] Speaker 03:
Arner, because you've taken under submission.

[00:35:24] Speaker 03:
That concludes this morning's arguments for this panel.

[00:35:33] Speaker ?:
All rise.

[00:35:37] Speaker 00:
The honorable court is adjourned until tomorrow morning at 7 AM.