[00:00:06] Speaker 04:
Okay, the next argued case is number 18-1102, Chart Trading Development, LLC, against Interactive Brokers, LLC.

[00:00:16] Speaker 04:
Mr. Barney.

[00:00:18] Speaker 01:
Good afternoon, Your Honors.

[00:00:19] Speaker 01:
James Barney on behalf of the Appellant Chart Trading.

[00:00:22] Speaker 01:
Chart Trading seeks a remand for the same reason that the Court ordered a remand in essay at its Institute versus complements soft.

[00:00:29] Speaker 01:
And that's because the Board changed its construction of a key term, Interactive Graphical Representation of a Market.

[00:00:34] Speaker 01:
in its final written decision without notice and an opportunity to be heard.

[00:00:38] Speaker 02:
Well, does that matter if we determine that that term is not a limitation?

[00:00:43] Speaker 01:
Your Honor, if the court determines that it's not a limitation because it's in the preamble, and if the court, so that what the board did was a little odd.

[00:00:51] Speaker 02:
I mean, it matters for the 611 patent argument for the amendment.

[00:00:54] Speaker 02:
Correct.

[00:00:54] Speaker 02:
But it doesn't matter for the, what's the other one?

[00:00:56] Speaker 02:
190.

[00:00:58] Speaker 01:
The 190.

[00:00:59] Speaker 01:
I'm going to answer yes with an asterisk.

[00:01:01] Speaker 01:
Can I explain my asterisk?

[00:01:02] Speaker 01:
Sure, of course.

[00:01:04] Speaker 01:
What the board did here was a little odd, because it didn't just state that the preamble isn't limiting.

[00:01:09] Speaker 01:
It also went ahead and construed the language.

[00:01:12] Speaker 01:
And then it applied that language in its 101 analysis.

[00:01:15] Speaker 01:
So if you look at the ALICE step one in the court's 101 analysis on the 190 patent, it starts out by saying that the claim is directed to a method and an apparatus for establishing an interactive graphical

[00:01:30] Speaker 01:
representation of a market, which is the preamble language.

[00:01:34] Speaker 01:
And in that 101 analysis, the board also explained that it had changed its construction of that preamble language to allow for a broader spectrum of actions that can take place with the chart other than trading interactions.

[00:01:48] Speaker 01:
So my only point, Judge Moore, is that if the court finds that it's not limiting,

[00:01:53] Speaker 01:
And if the court thinks that all of that other language in the board's opinion is mere surplusage, that it didn't affect the one-on-one opinion, then I would agree that we don't have a complement soft problem for the one-on-one opinion.

[00:02:03] Speaker 02:
Well, I'm completely confused.

[00:02:05] Speaker 02:
So just maybe let me see if I can clarify myself.

[00:02:09] Speaker 02:
So the board found it was not a limitation.

[00:02:13] Speaker 02:
But then they went on and said, well, and if we, the Federal Circuit, disagree with them, let us tell you what our interpretation is.

[00:02:18] Speaker 02:
By the way, I appreciate that they actually did that.

[00:02:21] Speaker 02:
That's helpful to us so that we can avoid inefficiency.

[00:02:24] Speaker 02:
So I don't have a problem with their desire to alternatively construe it.

[00:02:30] Speaker 02:
And under 101, if it's not a limitation, it can't really help you or save your claims if they're otherwise abstract.

[00:02:38] Speaker 02:
So that 101 analysis, to the extent that it analyzes that,

[00:02:42] Speaker 02:
would only be in case it was necessary because it was a limitation, right?

[00:02:47] Speaker 01:
I don't disagree with you.

[00:02:49] Speaker 02:
I just want to make sure that I understand this.

[00:02:51] Speaker 01:
I don't disagree with you if the court finds that it's not a preamble.

[00:02:55] Speaker 01:
And again, and the 101, I'm sorry, if the court finds it's not a limitation, then I think what we should be arguing about is the 611 patent.

[00:03:04] Speaker 01:
And I'm prepared to turn to that if your honors would like to hear it.

[00:03:06] Speaker 03:
If we decide it's either a 101 or a 103 in the alternative, you lose.

[00:03:13] Speaker 01:
On the 190?

[00:03:13] Speaker 01:
You're referring to the 190 patent?

[00:03:15] Speaker 01:
Yeah.

[00:03:17] Speaker 01:
I believe that's correct.

[00:03:19] Speaker 01:
I believe Judge Moore put her finger on it.

[00:03:21] Speaker 01:
I'm happy to turn to the 611 patent because I think the issues there are more interesting.

[00:03:27] Speaker 02:
So there are two errors in the 611 patent that the procedure... I've yet to see a case where it appears that the board applied or put the presumption on the wrong party but we didn't vacate and remand regardless.

[00:03:39] Speaker 02:
Are you familiar with our cases and how they have flown out?

[00:03:43] Speaker 02:
Are there any cases that you know of post

[00:03:46] Speaker 02:
aqua products where the burden for amendments were put on the wrong party and he nonetheless affirmed?

[00:03:51] Speaker 01:
Well, I'm aware of one that the appellee cited and the name has escaped me right now.

[00:03:59] Speaker 01:
It was a Rule 36 judgment.

[00:04:00] Speaker 01:
So you have to go in and dig through the briefs to find out what was argued.

[00:04:04] Speaker 01:
I'm also familiar with cases such as Serona Dental where this court did remand because the burden was placed on the wrong party.

[00:04:11] Speaker 01:
So I think for published

[00:04:13] Speaker 01:
Decisions?

[00:04:14] Speaker 01:
I'm not aware of any where the court did what you suggested, Judge Moore, and not remand.

[00:04:21] Speaker 01:
Now, going back to the procedural violations in the 611 patent, I think there are two of them.

[00:04:25] Speaker 01:
First, the board erred by changing its construction of interactive graphic representation of a market in its final written decision when it was too late for chart trading to respond.

[00:04:34] Speaker 01:
Importantly, neither party had advocated for that construction, and neither party had disputed the board's original construction of that term when it was set forth in the 190 Institution decision.

[00:04:43] Speaker 01:
Again, the only dispute the parties had in the 190 CBM was whether or not the preamble was a limitation.

[00:04:51] Speaker 01:
They never disputed whether the board's construction of that language was correct.

[00:04:57] Speaker 01:
Now this error was particularly prejudicial to chart trading because chart trading relied on the board's initial construction of this term in drafting its amended claims, only to learn in the final written decision that the board had changed course and had adopted a different construction.

[00:05:12] Speaker 01:
So we believe this error requires a remand and a complement soft because chart trading was deprived of notice and an opportunity to be heard on that new construction.

[00:05:21] Speaker 01:
As the court held in complements soft, APA requires that prior to an agency

[00:05:27] Speaker 01:
hearing the parties be given notice of any issues of factor law and the court in compliment soft held that claim construction is one of those issues of law that requires notice under the APA and here with respect to these amended claims the board provided no notice and no opportunity to be heard on that particular claim construction.

[00:05:47] Speaker 01:
Now in addition we believe the board's construction of this term is simply wrong.

[00:05:51] Speaker 01:
The board's construction says that it only requires

[00:05:55] Speaker 01:
that the user can take actions using the graph.

[00:05:57] Speaker 01:
But that is not the ordinary meaning of interactive in the ARP.

[00:06:01] Speaker 01:
Nor is it how interactive is used in the 611 patent.

[00:06:05] Speaker 01:
Interactive requires more than just the ability to take some action with respect to the chart.

[00:06:09] Speaker 01:
It requires the ability to exchange information between the user, who is a trader, and the computer, which is representing the market.

[00:06:18] Speaker 01:
And in the context of this invention, it clearly means that the graph itself is a trading interface that allows a user to place trades directly from the graph itself.

[00:06:26] Speaker 02:
Well, there's certainly lots and lots of language about trading in this patent.

[00:06:29] Speaker 02:
Isn't there also an example of allowing interaction in the form of zooming in or zooming out of the material?

[00:06:37] Speaker 02:
And wouldn't that be interactive?

[00:06:39] Speaker 01:
Your Honor, there are actions that can be taken that somebody could perhaps say is an interaction

[00:06:46] Speaker 01:
interaction, but I would point your honor to the 190 pattern.

[00:06:51] Speaker 02:
Is this broadest reasonable construction?

[00:06:56] Speaker 02:
I don't know where we are in that world.

[00:06:58] Speaker 02:
Is this broadest reasonable construction?

[00:07:00] Speaker 02:
This is still under the broadest.

[00:07:00] Speaker 02:
Okay, so the broadest reasonable construction, if you have examples in your spec that involve things other than trading, like namely zooming in and out, then why doesn't that, under a broadest reasonable construction standard, make the PTO's construction correct?

[00:07:16] Speaker 01:
Well, Your Honor, I would disagree that zooming in and out is interactive, because it's not an exchange of information between the user and the computer.

[00:07:23] Speaker 01:
We submitted dictionary definitions in the computer science field for interactive.

[00:07:28] Speaker 01:
And I wouldn't say that zooming in and out of an interface is interactive.

[00:07:33] Speaker 01:
But I would also point the court to the language in the specification, which is more than just a passing reference.

[00:07:39] Speaker 01:
If you turn to Appendix 132 and you look at Column 1, which is the background of the invention,

[00:07:45] Speaker 01:
lines 42 to 45, the patent is distinguishing prior graphs in the prior art, explaining that, yes, these graphs did provide a graphical representation of the financial market.

[00:07:58] Speaker 01:
However, these graphs are not interactive, as the trader is only provided with a representation of current activity of a market and is not able to enter a bid or offer or submit or hit or lift directly from the graph.

[00:08:11] Speaker 01:
So those are trading interactions.

[00:08:13] Speaker 01:
And throughout the specification,

[00:08:15] Speaker 02:
But how can I understand that language as simply saying it's not enough to just passively get information, you have to be able to engage with the program at that point?

[00:08:28] Speaker 02:
I mean, while this example is in the form of trading, it doesn't say President Dimension is limited to interaction in the trading space or anything like that.

[00:08:38] Speaker 01:
Well, throughout the specification, the inventor equated the graph with a trading interface.

[00:08:45] Speaker 01:
So if you look, for instance, column five on appendix 134, line six, in describing the invention, the patentee says, in general, graphical trading interface 300, or simply graph 300, provides a user with a graphical representation of a market, equating the trading interface with the graph.

[00:09:04] Speaker 02:
I think it's fair to say that... Let's go to column six for a second.

[00:09:09] Speaker 02:
Look, I get you.

[00:09:11] Speaker 02:
Trading's all over this patent.

[00:09:12] Speaker 02:
I haven't missed it.

[00:09:13] Speaker 02:
I've got about a zillion highlights and notes.

[00:09:16] Speaker 02:
I've read the patent.

[00:09:18] Speaker 02:
But column six, line eight-ish, the user may be able to zoom into an area of interest.

[00:09:24] Speaker 02:
In one example, first axis may be divided.

[00:09:27] Speaker 02:
It goes all the way through, and it talks about how the user selects something and the program's responsive to it.

[00:09:33] Speaker 02:
And then it talks about in another example shown in Figure 4, it's a date range overlay where the user can input dates and that that affects the output of what they're seeing.

[00:09:43] Speaker 02:
And it also has for zooming at the bottom of that.

[00:09:46] Speaker 02:
And then it says Figure 5 shows a graphical trading interface that may be provided.

[00:09:52] Speaker 02:
Are you telling me that the embodiments in the paragraphs on page 6 related to zooming and the date range weren't covered by these claims because

[00:10:03] Speaker 02:
They are trading interfaces.

[00:10:04] Speaker 02:
They're interfaces that provide for other functionality.

[00:10:07] Speaker 01:
If the interface only had those functions and did not allow you to enter a trade directly on the graph, they would not be covered by the claims because these claims are directed to a graph that is in and of itself a trading interface that allows a user to directly trade from the graph.

[00:10:23] Speaker 01:
As the board correctly determined in its initial construction based on the written description.

[00:10:31] Speaker 02:
What is your construction that you think should have been adopted?

[00:10:37] Speaker 01:
We agree with the board's original construction in the institution decision, which is a representation of a current market activity that allows a user to place a trade directly from the graphical representation.

[00:10:48] Speaker 01:
We believe that is the correct instruction.

[00:10:50] Speaker 02:
The one thing that kind of baffled me about that is that I don't know which of these limitations

[00:10:57] Speaker 02:
that you just articulated aren't actually already present, for example, in claim one in the body of the claim.

[00:11:03] Speaker 02:
So I don't know what adding, even if I give interactive graphical representation of a market, even if I were to say you should be allowed to amend the patent claim for the 611?

[00:11:14] Speaker 01:
611, that's correct.

[00:11:16] Speaker 02:
Even if I say you should be allowed to amend it, and the amendment you want to make should have exactly the meaning you intended to have,

[00:11:23] Speaker 02:
I don't see what additional limitation it would otherwise add to the claim, because if we look at claim one, every single one of the elements in your proposed construction is already present in claim one.

[00:11:34] Speaker 01:
So what am I missing?

[00:11:35] Speaker 01:
Are you referring to claim one unamended or the amended claim that we submitted?

[00:11:39] Speaker 01:
Because we didn't appeal claim one, so I'm really only referring to the amended claim that we submitted.

[00:11:45] Speaker 04:
But the point the board said was that the proposed amendments were not patently distinct.

[00:11:50] Speaker 04:
I think perhaps they would have been more prudent if they had accepted the amendment rather than denying it.

[00:11:58] Speaker 04:
But they treated it as if they had accepted it.

[00:12:01] Speaker 04:
And they said they didn't provide patentable distinction.

[00:12:04] Speaker 04:
And I didn't see where that was contradicted in your briefing.

[00:12:10] Speaker 01:
Well, Your Honor, if you're referring to the obviousness analysis, our argument there is that they placed the burden on the wrong party.

[00:12:17] Speaker 01:
There are limitations in the amended claims that really were not addressed by the petitioner.

[00:12:22] Speaker 01:
A very simple one that I can point to is the fact that in the amended claims, after you select a portion of the graph, you get a trading dialogue box that comes up that has both a buy and a sell option.

[00:12:34] Speaker 01:
That's an important distinction because in all of the prior art that was asserted, Friesen and Jones, you had to select buy or sell before you interacted with the graph.

[00:12:44] Speaker 01:
Our point in this amendment was that we are trying to amend the claim to show that the first interaction that you have with the chart is a trading interaction.

[00:12:54] Speaker 01:
It's the initiation of the order, as opposed to initiating the order by choosing a buy or sell off the graph and then coming to the graph to interact with it, for instance, to fill in the price term.

[00:13:05] Speaker 01:
When the board analyzed that limitation, all it said was, well, this is similar to something we've looked at in claim one.

[00:13:11] Speaker 01:
Well, that limitation's not in claim one.

[00:13:13] Speaker 01:
And petitioners never proved that that limitation would be obvious based on the combination that they are proposing.

[00:13:20] Speaker 01:
And in fact, the evidence of record shows that there would have been no motivation to take a trading dialogue box from a reference like Kirwin and combine it with either of the references, Jones or

[00:13:32] Speaker 01:
freezing because as their expert admitted that would be dangerous.

[00:13:36] Speaker 01:
You would not want to provide a trader the option of either buying or selling after that trader has already indicated that he wants to buy or sell off the graph.

[00:13:47] Speaker 01:
The point that we are making with the obviousness analysis is the burden was on the wrong party and we never got a chance, they never put in the evidence necessary to show that that would have been obvious.

[00:13:58] Speaker 01:
So that's why we're seeking a remand for the obviousness

[00:14:01] Speaker 01:
Now with respect to 101, what the board did with this construction of interactive is it said, well, your chart is really just a conventional chart.

[00:14:12] Speaker 01:
Well, that's incorrect.

[00:14:13] Speaker 01:
Our chart is interactive.

[00:14:15] Speaker 01:
And just like this case, just like this court held in the training technologies case,

[00:14:20] Speaker 01:
The fact that the interactive chart that allows you to place trades directly from the chart, there's no analog that existed in the pre-electronic trading world, which in the trading technologies case was the basis for the court's opinion or agreement with the district court.

[00:14:37] Speaker 01:
that that didn't even pass the ALICE step one threshold because if there is no analog in the pre-electronic trading world, you don't pass that first step of abstractness.

[00:14:49] Speaker 01:
You don't even get the step two of ALICE.

[00:14:51] Speaker 01:
The only way the board here was able to distinguish trading technologies and get through step one of ALICE is by treating our interactive chart

[00:15:00] Speaker 01:
as essentially a non-interactive chart saying that this is just an ordinary conventional chart like those that existed in the pre-electronic trading world.

[00:15:09] Speaker 01:
We think that's unreasonable and unsustainable and we think that on remand with a compliment soft remand we would be able to explain to the board we never had an opportunity to do this because this construction came out in the final written decision.

[00:15:22] Speaker 01:
We would have an opportunity to explain to the board that that can't possibly be correct.

[00:15:26] Speaker 03:
Is your point that Section 101 really incorporates the notion of conventional pre-existent?

[00:15:36] Speaker 01:
That's correct, Your Honor.

[00:15:37] Speaker 01:
That's the way we read the Court's opinion in Trading Technologies.

[00:15:41] Speaker 01:
In Trading Technologies, it was a graphical user interface for placing trades in an electronic trading system.

[00:15:47] Speaker 01:
And the Court agreed with the District Court

[00:15:50] Speaker 01:
that because this particular graphical interface and the features it presented had no analog in the pre-electronic trading world, it didn't even reach that threshold of getting to step one of Alice, let alone step two.

[00:16:02] Speaker 01:
We don't think our cases can be distinguished from trading technologies unless you do what the board did, which is you ignore what interactive actually means in the patent.

[00:16:12] Speaker 04:
Let's hear from the other side.

[00:16:22] Speaker 00:
May I please report?

[00:16:23] Speaker 00:
Yes.

[00:16:24] Speaker 00:
Danielle Healy for the appellees.

[00:16:29] Speaker 00:
The case here, as you've noted on the 190, can be affirmed without really much more discussion, if any.

[00:16:35] Speaker 00:
On the 611, there's no reversible error.

[00:16:38] Speaker 00:
And the reason is that in the 101 analysis, the focus was on whether or not these were just claims that at the end of the day were, I wish I had a system that did this, or I wish I had a system that looked like this.

[00:16:52] Speaker 00:
as opposed to the specific implementations that were shown at Enfish, in Bascom, in DDR Holdings, and in CQG.

[00:17:02] Speaker 00:
In addition, the distinction here was that there was no pre-computer analog.

[00:17:09] Speaker 00:
In other words, CQG dealt with the specific problem of how do you manage protecting the trader, using the computer to efficiently place trades,

[00:17:20] Speaker 00:
when you have everything moving at once.

[00:17:22] Speaker 00:
And the way that CTG cured that was by implementing a static price axis, and that static price axis implementation was considered the pannable feature in CTG.

[00:17:35] Speaker 00:
Here we have a graph.

[00:17:39] Speaker 00:
As was noted by Judge Moore, there is extensive discussion in the specification.

[00:17:45] Speaker 00:
It's the same specification, of course, for both patents, of other things that are interactive.

[00:17:50] Speaker 00:
zooming, changing date ranges, and other such manipulation.

[00:17:55] Speaker 00:
But if you read the opinion from the PTAB on the 611, you'll see that the focus is not on zooming or fixing date ranges.

[00:18:03] Speaker 00:
It's on trading.

[00:18:05] Speaker 00:
And it's looking at the claims, the claim of the 611 patent, the amended claim, to see what does it add, what does it do.

[00:18:14] Speaker 00:
And it finds that that claim and the specification

[00:18:18] Speaker 00:
don't teach you anything, they don't implement anything, they don't solve any specific problem, they just give you something that, frankly, is not much different from what you already had in the patent.

[00:18:31] Speaker 00:
So, for instance, in the 611, the term interactive graphical representation, in effect, becomes irrelevant because other limitations in the 611 that they sought to amend added what was missing, in theory, from the board's final decision.

[00:18:47] Speaker 00:
And that is the trading.

[00:18:50] Speaker 00:
Other additions to the 611 were really inconsequential, such as trading a financial instrument.

[00:18:57] Speaker 02:
Do you dispute that the burden was put on the wrong party with regard to the motion to amend?

[00:19:04] Speaker 00:
Your Honor, I do not dispute that on the obviousness that the board held that come end of day, they weren't going to be comfortable saying that

[00:19:16] Speaker 00:
petitioners that the patent owner had met its burden in light of their view of Friesen, Jones, and Kerwin.

[00:19:24] Speaker 00:
The board never said, and if you read the analysis on the 101, that the burden was on the patent owner or that the patent owner didn't need a burden.

[00:19:33] Speaker 02:
Do you have reason to think that for 101 they would put the burden on one party, but for 103 they would put it on a different party?

[00:19:39] Speaker 00:
I think, Your Honor, 101

[00:19:42] Speaker 00:
has been viewed, in this case was viewed more as a question of law where the issue was to come to the correct decision and where there wasn't a burden expressly placed on one side or the other as opposed to the court coming to the correct legal analysis of whether this is 101.

[00:19:59] Speaker 02:
I don't understand.

[00:20:01] Speaker 02:
Obviously this is a question of law also, so I guess I don't follow your answer.

[00:20:07] Speaker 00:
That the burden of proof on the facts

[00:20:10] Speaker 00:
I.E.

[00:20:10] Speaker 00:
do Friesen, Perwin, and Jones combine, show?

[00:20:15] Speaker 02:
I think I understand now.

[00:20:16] Speaker 02:
You're saying at this point in time, it wasn't understood necessarily, that there were questions of fact underlying 101, so that whole burden of proofing didn't play a role in the analysis the way it does now.

[00:20:29] Speaker 00:
Yes, Your Honor.

[00:20:30] Speaker 00:
And if you read the 101 analysis, I think that holds true.

[00:20:35] Speaker 02:
No, I did.

[00:20:36] Speaker 02:
I noticed the difference, but I couldn't figure out why, but now I get it.

[00:20:40] Speaker 00:
Um, the other thing that I would say about the... But what about his argument under 101, Ms.

[00:20:47] Speaker 02:
Healy, that, um, the interactive chart thing, you know, brings it outside the realm of abstractness, because under Alice step one, the fact that it's interactive is different.

[00:20:59] Speaker 00:
Two responses, Your Honor.

[00:21:01] Speaker 00:
First of all, um, again, the real problem on the abstraction issue was the distinction in the case law between implementing

[00:21:10] Speaker 00:
a solution to a problem, implementing a technological improvement versus simply saying what the end result should be.

[00:21:17] Speaker 00:
And that was the main thrust of the 101 analysis for both patents.

[00:21:22] Speaker 00:
The second thing is that the board did find in both the 190 opinion and the 611 opinion that Friesen had their limitation of trading directly from the graph and that Jones had the same limitation.

[00:21:39] Speaker 00:
there isn't really any reason to think that you've got a new technological invention here when you're really dealing with an analog to trading as it was always done, where people are interacting with the graph, albeit sometimes with a slip of paper, sometimes screaming from a pit, but they're working off of the graph.

[00:22:04] Speaker 00:
And here, all they've really done is use conventional computer technology

[00:22:09] Speaker 00:
The plot in what appears to be a graph as opposed to discrete points, what the market is currently doing and what the market's been historically doing.

[00:22:21] Speaker 00:
This historical distinction is a red herring because you can only graph things that have happened.

[00:22:28] Speaker 00:
You can't graph something that's future.

[00:22:30] Speaker 00:
You can only graph what's historical.

[00:22:32] Speaker 00:
And putting a historical plot of numbers onto a screen is not

[00:22:39] Speaker 00:
I think anything but an abstract idea, and saying that you can interact with it is not something that's anything but an abstract idea, unless you tell people, well, here's the problem with interacting with this conventional software, conventional hardware that we've combined.

[00:22:56] Speaker 02:
And that's another point to bring out, is that the specification only talks about... Well, didn't they argue that it reduced error by being able to effectuate the trade right in this location?

[00:23:11] Speaker 00:
I don't believe that they could argue that it reduced error because all of the trades in these systems are pretty much the same.

[00:23:19] Speaker 00:
You click on a certain spot or move a cursor to a certain spot or drag a token, and a dialog box comes up.

[00:23:27] Speaker 00:
And that dialog box is where you have to confirm what you're trading, how much, and confirm whether you're going to buy it or if it has both the buy and sell buttons in the same box as the amendment to the 611 had.

[00:23:41] Speaker 00:
as the Kerwin patent had, you then would pick by yourself.

[00:23:46] Speaker 00:
But in all of these embodiments that's in the patent, that's in the art, you're never just trading off of the graph.

[00:23:52] Speaker 00:
And frankly, it'd be too imprecise just to click on a graph and put in a trade.

[00:23:56] Speaker 00:
You have to see what, you have to confirm what numbers you've actually clicked on the line.

[00:24:02] Speaker 00:
And that's what these dialog boxes do, and that's what their patent claims, and that's what

[00:24:09] Speaker 00:
a number of other patents claimed.

[00:24:12] Speaker 00:
And for that reason, I don't think there is anything new or inventive.

[00:24:17] Speaker 00:
It's simply the same thing you would always get with a trader yelling out a bid, and that's a confirmation.

[00:24:27] Speaker 00:
But I would also say, Your Honor, that it's harmless error under Section 706 of the APA, the aqua products, because all of the findings that

[00:24:39] Speaker 00:
the obviousness.

[00:24:40] Speaker 02:
When you say it's harmless error, do you mean the application of the burden on the wrong person?

[00:24:45] Speaker 00:
Yes, because in the totality of the circumstances here, and that's what 706 requires, look, the totality of the circumstances, the record.

[00:24:53] Speaker 00:
In the record here, there was nothing that harmed the patent owner because you had an analysis.

[00:25:03] Speaker 00:
First look at the 190 decision.

[00:25:05] Speaker 00:
The 190 decision, we had the burden of proof.

[00:25:07] Speaker 02:
The court did it under the right burden scenario with regard to the 190 and it was identified here.

[00:25:14] Speaker 00:
And they got the exact same findings here.

[00:25:17] Speaker 04:
So in the appendix on page... I got the impression in looking at the record for the amendment provision that the idea was that when the patent owner submits an amendment perhaps at an early stage or perhaps after claim construction in order to change it,

[00:25:37] Speaker 04:
that it goes through a kind of original examination process that the amendment is accepted, but you argue that this is what's different.

[00:25:51] Speaker 04:
And the way it's being treated now, and perhaps there's no harm in it, perhaps it's hard to say whether this is even error, is that all right, that's the way you want your claims to be looked at.

[00:26:04] Speaker 04:
That's all right with us as the decision maker, as the PTAB.

[00:26:09] Speaker 04:
And then from then on, they accept the claim as amended.

[00:26:13] Speaker 04:
Whereas here, they sort of struck a, I don't know, a not so happy medium.

[00:26:19] Speaker 04:
They say, well, you've amended it, but it really doesn't make any difference.

[00:26:23] Speaker 00:
Well, I don't think that the law and the PTAB proceedings on amendment give you what amounts to be a right to amend and then leave it subject to

[00:26:33] Speaker 00:
the petitioner to tear down the amendment after it's been allowed.

[00:26:38] Speaker 00:
I think the way it's supposed to work is that there's supposed to be a decision by the PTAD as to whether the claim is allowable.

[00:26:45] Speaker 00:
And all of the reasons that apply to the 190 also apply to the 611.

[00:26:51] Speaker 00:
And in the 611, I mean in the 190, the petitioners had the burden of proof.

[00:26:57] Speaker 00:
And the holding, the ultimate order, is that in the 190, the petitioners met their burden of proof.

[00:27:02] Speaker 00:
The same findings were made as to the 611 patent factually.

[00:27:07] Speaker 00:
There was a finding that Friesen allowed for trading directly from the graph.

[00:27:12] Speaker 00:
There was a finding that Kerwin had the dialogue box with the buy-sell buttons.

[00:27:17] Speaker 00:
There was a finding that you could trade interactively from the graph in Jones.

[00:27:22] Speaker 00:
These findings also were in the opinion in the 611, it's just

[00:27:30] Speaker 00:
What the board did come the end of the day, they made very extensive findings, just as they did in the 190.

[00:27:35] Speaker 00:
And just as in the 190, I think those findings showed it was obvious.

[00:27:40] Speaker 00:
But in the end, they said, well, and on top of that, we're not going to go with what you had to say, because you didn't meet your burden.

[00:27:50] Speaker 00:
I think that in light of the 190, where the burden was on the petitioner and the findings were made, and even the findings of the 611 that are viewed only for substantial evidence,

[00:28:00] Speaker 00:
In the totality of the circumstances, under Section 706, this is really harmless error.

[00:28:07] Speaker 00:
The only other things I would add is that, for example, their expert tried to put in evidence of secondary condition in disheve non-obviousness.

[00:28:18] Speaker 00:
And it wasn't that they failed in their burden of proof in putting that in.

[00:28:23] Speaker 00:
It was that they failed to put in competent evidence.

[00:28:27] Speaker 00:
So for example, if you read the 611 opinion,

[00:28:30] Speaker 00:
and their analysis of the expert's testimony on secondary considerations, it's just there's a complete failure of proof, not that the burden was shifted one way or the other.

[00:28:42] Speaker 00:
And I do believe that, obviously, in the Sanders case from the Supreme Court, ultimately, it's the party that's appealing that has to show harmfulness.

[00:28:52] Speaker 00:
Also, it's not appropriate under 706 to have a per se rule of presumed harm

[00:28:58] Speaker 00:
a presumed remand because we have presumed harm.

[00:29:01] Speaker 00:
Sanders says you've got to look at the totality of the circumstances, and then the petitioner, rather the appellant, has the burden to show that the error was harmful.

[00:29:13] Speaker 00:
They haven't shown what they would have done any differently.

[00:29:16] Speaker 00:
And also, when you look at the context of the analysis of these claims in both petitions and in both final written decisions,

[00:29:27] Speaker 00:
you'll see the whole emphasis is on trading.

[00:29:30] Speaker 00:
Because ultimately, this is trading software.

[00:29:32] Speaker 00:
That's what it does.

[00:29:34] Speaker 00:
And no one was knocking out their patents on the basis of, well, you just have zooming or you just have changing the date range.

[00:29:41] Speaker 00:
No, they were knocking them out because you've come up with a result-oriented rubric of what you want a trading system to look like without

[00:29:52] Speaker 00:
showing how it should be implemented or showing that you're resolving a problem that only came about after computers.

[00:30:00] Speaker 00:
In that way, CQG doesn't save them.

[00:30:04] Speaker 00:
CQG had a very specific problem it was addressing with a technological solution to that problem.

[00:30:11] Speaker 00:
DDR doesn't save them.

[00:30:12] Speaker 00:
It was a problem that only arose after the internet.

[00:30:15] Speaker 00:
Baskin doesn't save them.

[00:30:16] Speaker 00:
It's a problem that only arose after the internet with a technical solution.

[00:30:20] Speaker 00:
These cases don't let you just come in and say, I'm not going to give you the recipe for a chocolate cake.

[00:30:26] Speaker 00:
I'm just going to describe to you what a chocolate cake looks like.

[00:30:29] Speaker 00:
And that's what you should have at the end of the day, something that looks like this.

[00:30:32] Speaker 02:
I'm not bringing up the blood sugar.

[00:30:33] Speaker 02:
Steer clear of that.

[00:30:37] Speaker 00:
So inclusion, Your Honor, I think that on the 611, there was no misallocation of the burden when you read the actual text of the final written decision, and that

[00:30:50] Speaker 00:
That ought to be affirmed, if nothing else, on the 101 basis.

[00:30:54] Speaker 00:
But I think even if you go to the obviousness point in the 611 patent, because we had the right burden in the 190 patent, and because of the findings of the PTAB in both patents about what the prior art showed, that to remand this case for a redo is just an enormous waste of everyone's time.

[00:31:18] Speaker 00:
And then if I could throw out one last point,

[00:31:20] Speaker 00:
I do think that due process requires a notice and an opportunity to be heard.

[00:31:26] Speaker 00:
If I could just finish, Your Honor.

[00:31:30] Speaker 00:
I'm out of time.

[00:31:31] Speaker 00:
Oh.

[00:31:32] Speaker 04:
I don't understand.

[00:31:35] Speaker 04:
Are you saying that you or they were not heard when you were talking about the new claim construction?

[00:31:41] Speaker 00:
No, I was being at a slightly different point, Your Honor, and that is due process requires

[00:31:47] Speaker 00:
notice and opportunity to be heard.

[00:31:49] Speaker 04:
Okay, so what notice and opportunity were missing here?

[00:31:52] Speaker 00:
The final written decision was notice.

[00:31:55] Speaker 00:
The right to move for reconsideration was the opportunity to be heard.

[00:32:00] Speaker 00:
Yes, it is not a condition of appeal that you file a motion for reconsideration, but where you do have that notice and that opportunity to be heard, you are not being deprived of due process if you choose to bypass that or blow it off and instead try to

[00:32:17] Speaker 00:
roll the dice on appeal.

[00:32:18] Speaker 03:
It's also the case that we only review final written decisions.

[00:32:22] Speaker 03:
Isn't that correct?

[00:32:24] Speaker 00:
That's true.

[00:32:25] Speaker 00:
But here they're saying they didn't have notice and an opportunity to cure.

[00:32:30] Speaker 00:
And I'm just saying that you always have notice and an opportunity to cure anything in a final written decision that hasn't been previously brought up or raised on.

[00:32:39] Speaker 00:
And if nothing else, judicial efficiency would be best served by that rule.

[00:32:45] Speaker 04:
Thank you.

[00:32:53] Speaker 01:
I realize I'm probably the only thing standing in the way of people going home this afternoon, so I'll keep it very brief.

[00:32:59] Speaker 03:
More importantly, the cocktail hour.

[00:33:02] Speaker 01:
That too, Your Honor.

[00:33:03] Speaker 01:
I just want to address a couple of points.

[00:33:07] Speaker 01:
My colleague mentioned harmless error and referred to the fact that the court, excuse me, the board made certain findings in the 190

[00:33:14] Speaker 01:
analysis, which my colleague believes can be transferred over to the 611 analysis.

[00:33:22] Speaker 01:
That's not correct.

[00:33:23] Speaker 01:
The amended claims in the 611 patent include a number of limitations that weren't at issue in the 190.

[00:33:29] Speaker 01:
They require, for instance, that you initiate an order command for the financial instrument after you select the portion of the grant.

[00:33:36] Speaker 04:
That's easy, but what about 103?

[00:33:37] Speaker 01:
Well, I'm talking about the 103 here.

[00:33:41] Speaker 01:
The fact that

[00:33:41] Speaker 01:
There are multiple new limitations that are introduced in the 611 amended claims that were not at issue in the 190.

[00:33:49] Speaker 01:
So it's not correct that you can simply lift, if you will, the board's analysis for the 190 patent claims and drop them into the 611 amended claims and say, well, the burden of proof was satisfied there because there's a bunch of limitations that weren't addressed.

[00:34:03] Speaker 01:
An important one, as I've already mentioned, is the fact that the trading dialogue box that comes up has to have both a buy and sell

[00:34:10] Speaker 01:
That's not a trivial distinction.

[00:34:12] Speaker 01:
Their experts said that would be dangerous to implement if you tried to combine that type of dialogue box with either the Friesen or the Jones reference.

[00:34:21] Speaker 01:
I've already referred to that, so I'm not going to repeat myself, but simply suffice it to say we don't believe that that satisfies the harmless error test.

[00:34:30] Speaker 02:
Is it your view that the board applied put the burden on the wrong party for 101 with regard to the motion to amend the 611?

[00:34:36] Speaker 01:
Your Honor, I think it's probably a tougher, that's a tougher call as to whether it did or not.

[00:34:40] Speaker 01:
I think it's ambiguous.

[00:34:41] Speaker 01:
There's no question in my mind they did for 103.

[00:34:44] Speaker 01:
If you read 103.

[00:34:45] Speaker 02:
I agree with you, 103, 100%.

[00:34:46] Speaker 02:
Yeah, yeah.

[00:34:47] Speaker 02:
But 101, I think Mr. Lee makes a very good point, which is back when they were doing this, there weren't necessarily recognized factual underpinnings of 101.

[00:34:56] Speaker 02:
And that's when you're talking about burden.

[00:34:57] Speaker 02:
It's about the evidence.

[00:34:59] Speaker 01:
I would agree.

[00:35:01] Speaker 01:
It's not an unfair reading to say that at the very, at the

[00:35:05] Speaker 01:
At the least it's ambiguous as to where they put the burden.

[00:35:08] Speaker 02:
So what's wrong then?

[00:35:09] Speaker 02:
If it's not clear that they erred on the 101 analysis vis-a-vis the burden, what's wrong with their 101 analysis for the 611?

[00:35:16] Speaker 01:
It's the SAS versus COMPLIMENTSOFT problem and the fact that the claim construction itself is incorrect.

[00:35:23] Speaker 01:
But I think just on SAS COMPLIMENTSOFT, we're entitled to a remand because we never got to argue that

[00:35:30] Speaker 01:
the 101 statute is satisfied under the court's, under the board's construction.

[00:35:36] Speaker 01:
Because we only saw that construction in the final written decision.

[00:35:42] Speaker 01:
I think that's probably enough.

[00:35:44] Speaker 01:
Okay.

[00:35:44] Speaker 01:
Unless you have questions.

[00:35:45] Speaker 04:
Thank you.

[00:35:46] Speaker 04:
Thank you all.

[00:35:48] Speaker 04:
The case is taken under submission and that concludes this afternoon.