Trading Technologies Int'l v. Ibg LLC , 921 F.3d 1084 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
TRADING TECHNOLOGIES INTERNATIONAL,
INC.,
Appellant
v.
IBG LLC, INTERACTIVE BROKERS, LLC,
Appellees
UNITED STATES,
Intervenor
______________________
2017-2257
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2015-
00179.
--------------------------------------------------
TRADING TECHNOLOGIES INTERNATIONAL,
INC.,
Appellant
v.
IBG LLC, INTERACTIVE BROKERS LLC,
Appellees
2 TRADING TECHNOLOGIES INT'L v. IBG LLC
UNITED STATES,
Intervenor
______________________
2017-2621
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2016-
00051.
--------------------------------------------------
TRADING TECHNOLOGIES INTERNATIONAL,
INC.,
Appellant
v.
IBG LLC, INTERACTIVE BROKERS LLC,
Appellees
UNITED STATES,
Intervenor
______________________
2018-1063
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. CBM2016-
00032.
______________________
Decided: April 18, 2019
______________________
TRADING TECHNOLOGIES INT'L v. IBG LLC 3
MICHAEL DAVID GANNON, Baker & Hostetler LLP, Chi-
cago, IL, argued for appellant. Also represented by LEIF R.
SIGMOND, JR., JENNIFER KURCZ; ALAINA J. LAKAWICZ, Phil-
adelphia, PA; COLE BRADLEY RICHTER, McDonnell,
Boehnen, Hulbert & Berghoff, LLP, Chicago, IL; STEVEN
BORSAND, JAY QUENTIN KNOBLOCH, Trading Technologies
International, Inc., Chicago, IL.
BYRON LEROY PICKARD, Sterne Kessler Goldstein &
Fox, PLLC, Washington, DC, argued for appellees. Also
represented by ROBERT EVAN SOKOHL, RICHARD M.
BEMBEN, JON WRIGHT; MICHAEL T. ROSATO, Wilson, Son-
sini, Goodrich & Rosati, PC, Seattle, WA.
KATHERINE TWOMEY ALLEN, Appellate Staff, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for intervenor. Also represented by MARK R.
FREEMAN, SCOTT R. MCINTOSH, JOSEPH H. HUNT; THOMAS
W. KRAUSE, JOSEPH MATAL, FARHEENA YASMEEN RASHEED,
Office of the Solicitor, United States Patent and Trade-
mark Office, Alexandria, VA.
______________________
Before MOORE, MAYER, and LINN, Circuit Judges.
MOORE, Circuit Judge.
Trading Technologies International, Inc., (“TT”) is the
owner of U.S. Patent Nos. 7,533,056, 7,212,999, and
7,904,374. Each patent relates generally to a graphical
user interface (“GUI”) for electronic trading. The ’056 and
’999 patents, which share a specification, disclose “a user
interface for an electronic trading system that allows a re-
mote trader to view trends in the orders for an item, and
provides the trading information in an easy to see and in-
terpret graphical format.” ’999 patent at 1:3–6. The ’374
patent, which is from a different patent family, discloses “a
display and trading method to ensure fast and accurate ex-
ecution of trades by displaying market depth on a vertical
4 TRADING TECHNOLOGIES INT'L v. IBG LLC
or horizontal plane, which fluctuates logically up or down,
left or right across the plane as the market prices fluctu-
ate[].” ’374 patent at 3:54–58.
IBG LLC and Interactive Brokers LLC (collectively,
“Petitioners”) petitioned for review of claims 1–15 of the
’056 patent, claims 1–35 of the ’999 patent, and claims 1–
36 of the ’374 patent pursuant to the Transitional Program
for Covered Business Method Patents (“CBM review”).
Leahy-Smith Am. Invents Act, Pub. L. No. 112-29, § 18(a)
125 Stat. 284, 329–31 (2011) (“AIA”). In each case, the Pa-
tent Trial and Appeal Board instituted CBM review and
issued final written decisions holding that the patents
meet the criteria to be eligible for CBM review and the
claims are ineligible under 35 U.S.C. § 101. The Board ad-
ditionally held that the claims of the ’056 patent would
have been obvious.
TT appeals from each decision. We have jurisdiction
under 28 U.S.C. § 1295(a)(4)(A). For the following reasons,
we affirm.
DISCUSSION
I. CBM Eligibility
Pursuant to § 18(a)(1)(E) of the AIA, the Board may
only institute CBM review for a patent that is a CBM pa-
tent. A CBM patent is “a patent that claims a method or
corresponding apparatus for performing data processing or
other operations used in the practice, administration, or
management of a financial product or service, except that
the term does not include patents for technological inven-
tions.” Id. § 18(d)(1) (emphasis added). Pursuant to its au-
thority under § 18(d)(2), the Patent and Trademark Office
(“PTO”) promulgated 37 C.F.R. § 42.301(b), which requires
the Board to consider the following on a case-by-case basis
in determining whether a patent is for a technological in-
vention: “whether the claimed subject matter as a whole
recites a technological feature that is novel and unobvious
TRADING TECHNOLOGIES INT'L v. IBG LLC 5
over the prior art” and whether it “solves a technical prob-
lem using a technical solution.” We review the Board’s rea-
soning “under the arbitrary and capricious standard and
its factual determinations under the substantial evidence
standard.” SightSound Techs., LLC v. Apple Inc., 809 F.3d
1307, 1315 (Fed. Cir. 2015).
The only issue of CBM eligibility that TT contests is
whether its patents are for technological inventions.
A. The ’999 and ’056 Patents
The Board relied on claim 1 of the ’999 patent and
claim 1 of the ’056 patent to determine that those patents
are directed to a covered business method. Claim 1 of the
’999 patent recites:
1. A computer based method for facilitating the
placement of an order for an item and for display-
ing transactional information to a user regarding
the buying and selling of items in a system where
orders comprise a bid type or an offer type, and an
order is generated for a quantity of the item at a
specific value, the method comprising:
displaying a plurality of bid indicators,
each corresponding to at least one bid for a
quantity of the item, each bid indicator at a
location along a first scaled axis of prices
corresponding to a price associated with
the at least one bid;
displaying a plurality of offer indicators,
each corresponding to at least one offer for
a quantity of the item, each offer indicator
at a location along the first scaled axis of
prices corresponding to a price associated
with the at least one offer;
receiving market information representing
a new order to buy a quantity of the item
6 TRADING TECHNOLOGIES INT'L v. IBG LLC
for a specified price, and in response to the
received market information, generating a
bid indicator that corresponds to the quan-
tity of the item bid for and placing the bid
indicator along the first scaled axis of
prices corresponding to the specified price
of the bid;
receiving market information representing
a new order to sell a quantity of the item
for a specified price, and in response to the
received market information, generating
an offer indicator that corresponds to the
Quantity of the item for which the offer is
made and placing the offer indicator along
the first scaled axis of prices corresponding
to the specified price of the offer;
displaying an order icon associated with an
order by the user for a particular quantity
of the item;
selecting the order icon and moving the or-
der icon with a pointer of a user input de-
vice to a location associated with a price
along the first scaled axis of prices; and
sending an order associated with the order
icon to an electronic trading exchange,
wherein the order is of a bid type or an offer
type and the order has a plurality of order
parameters comprising the particular
quantity of the item and the price corre-
sponding to the location at which the order
icon was moved.
Claim 1 of the ’056 patent is similar. It recites:
1. A method of operation used by a computer for
displaying transactional information and
TRADING TECHNOLOGIES INT'L v. IBG LLC 7
facilitating trading in a system where orders com-
prise a bid type or an offer type, the method com-
prising:
receiving bid and offer information for a
product from an electronic exchange, the
bid and offer information indicating a plu-
rality of bid orders and a plurality of offer
orders for the product;
displaying a plurality of bid indicators rep-
resenting quantity associated with the plu-
rality of bid orders, the plurality of bid
indicators being displayed at locations cor-
responding to prices of the plurality of bid
orders along a price axis;
displaying a plurality of offer indicators
representing quantity associated with the
plurality of offer orders, the plurality of of-
fer indicators being displayed at locations
corresponding to prices of the plurality of-
fer orders along the price axis;
receiving a user input indicating a default
quantity to be used to determine a quantity
for each of a plurality of orders to be placed
by the user at one or more price levels;
receiving a user input indicating a desired
price for an order to be placed by the user,
the desired price being specified by selec-
tion of one of a plurality of locations corre-
sponding to price levels along the price
axis; and
sending the order for the default quantity
at the desired price to the electronic ex-
change.
8 TRADING TECHNOLOGIES INT'L v. IBG LLC
We agree with the Board that these claims are directed
to a covered business method and thus CBM review was
appropriate. These claims are directed to a financial trad-
ing method used by a computer. We see no technological
invention in this software method for trading. The claims
require receiving bid and offer information from an elec-
tronic exchange, displaying such information (“bid indica-
tors” and “offer indicators”), and sending an order to the
electronic exchange based on a user input. The two claims
differ mainly in the way the user places the order (clicking
and dragging an “order icon” to a location on the price axis
versus selecting a point on the price axis). In each case, the
Board applied the considerations of § 42.301(b) and found
that the claims do not recite a technological feature that is
novel and unobvious over the prior art and do not solve a
technical problem with a technical solution for essentially
the same reasons.
TT argues the Board erred in applying the first consid-
eration of § 42.301(b) based on our decision in Versata De-
velopment Group Inc. v. SAP America, Inc., 793 F.3d 1306
(Fed. Cir. 2015). According to TT, Versata set aside the
novelty and nonobviousness language of the regulation,
leaving the definition of a technological invention as one
having a technological feature that solves a technical prob-
lem using a technical solution. E.g., Appellant Br. 24–25,
No. 18-1063 (citing 793 F.3d at 1326). We need not decide
this issue because we agree with the Board that the consid-
ered claims do not solve a technical problem using a tech-
nical solution. See Apple, Inc. v. Ameranth, Inc., 842 F.3d
1229, 1240 (Fed. Cir. 2016) (“We need not address this ar-
gument regarding whether the first prong of 37 C.F.R.
§ 42.301(b) was met, as we affirm the Board’s determina-
tion on the second prong of the regulation . . . .”).
TT argues the inventions addressed technical problems
in the way prior art GUI tools were constructed and oper-
ated. It claims the ’999 patent addressed problems related
to speed, efficiency, and usability, and the ’056 patent
TRADING TECHNOLOGIES INT'L v. IBG LLC 9
addressed problems related to intuitiveness, visualization,
and efficiency. We agree with the Board that the patents
relate to the practice of a financial product, not a techno-
logical invention. The specification states that a successful
trader anticipates the market to gain an advantage, ’999
patent at 1:20–26, but doing so is difficult because it re-
quires assembling data from various sources and pro-
cessing that data effectively, id. at 1:51–54. The invention
solves this problem by displaying trading information “in
an easy to see and interpret graphical format.” Id. at 2:3–
6. The specification makes clear that the invention simply
displays information that allows a trader to process infor-
mation more quickly. Id. at 1:59–62 (“[A] system is needed
in which trend information of market demand for an indi-
vidual item is provided to traders in an intuitive format
which allows traders to quickly interpret how market de-
mand is changing to an item.”); id. at 2:39–41 (“The user
interface of the present invention presents this information
in an intuitive format, allowing the trader to make in-
formed decisions quickly.”); id. at 2:57–62 (noting that dis-
playing the user’s trades in a different color “allows the
trader to quickly determine his or her relative position in
the marketplace”); id. at 3:37–44 (noting that “the trader is
able to make instantaneous decisions regarding an item
while receiving critical information about other items or
the past performance of the current item and other indi-
ces,” which “is a major advantage over conventional meth-
ods of trading in which this information is not provided
concurrently, and if presented at all, is difficult to process
quickly”). This invention makes the trader faster and more
efficient, not the computer. This is not a technical solution
to a technical problem.
TT argues that the Board erred in the CBM review of
the ’999 patent when it declined to consider the testimony
of its expert Mr. Christopher Thomas. Even if TT was cor-
rect, the error would be harmless as Mr. Thomas’ declara-
tion acknowledges that conventional GUIs for electronic
10 TRADING TECHNOLOGIES INT'L v. IBG LLC
trading dynamically displayed trading information and
permitted users to trade directly from the interface.
J.A. 8610–12, No. 18-1063. Nothing in his declaration as-
serts that the claimed interface did anything other than
present information in a new and more efficient way to
traders. Even if the Board had considered this testimony,
it could not have reached a different conclusion.
Accordingly, we agree that the ’999 and ’056 patents
are not for a technological invention and thus are eligible
for CBM review.
B. The ’374 Patent
The Board relied on claim 1 of the ’374 patent to deter-
mine that the patent is directed to a covered business
method. Claim 1 of the ’374 patent recites:
1. A method for facilitating trade order entry, the
method comprising:
receiving, by a computing device, market
data for a commodity, the market data com-
prising a current highest bid price and a
current lowest ask price available for the
commodity;
identifying, by the computing device, a plu-
rality of sequential price levels for the com-
modity based on the market data, where
the plurality of sequential price levels in-
cludes the current highest bid price and the
current lowest ask price;
displaying, by the computing device, a plu-
rality of graphical locations aligned along
an axis, where each graphical location is
configured to be selected by a single action
of a user input device to send a trade order
to the electronic exchange, where a price of
TRADING TECHNOLOGIES INT'L v. IBG LLC 11
the trade order is based on the selected
graphical location;
mapping, by the computing device, the plu-
rality of sequential price levels to the plu-
rality of graphical locations, where each
graphical location corresponds to one of the
plurality of sequential price levels, where
each price level corresponds to at least one
of the plurality of graphical locations, and
where mapping of the plurality of sequen-
tial price levels does not change at a time
when at least one of the current highest bid
price and the current lowest ask price
changes; and
setting a price and sending the trade order
to the electronic exchange in response to re-
ceiving by the computing device commands
based on user actions consisting of: (1) plac-
ing a cursor associated with the user input
device over a desired graphical location of
the plurality of graphical locations and (2)
selecting the desired graphical location
through a single action of the user input de-
vice.
The Board determined that claim 1 of the ’374 patent
does not recite a novel and unobvious technical feature and
does not solve a technical problem with a technical solu-
tion. For purposes of our technological invention analysis,
we see no meaningful difference between the ’374 claims
and the ’999 and ’056 claims.
TT argues the ’374 invention solves a technical problem
with the design of conventional electronic trading GUIs.
According to TT, this GUI solves a problem that might
cause the trader to submit an order at a price he did not
intend.
12 TRADING TECHNOLOGIES INT'L v. IBG LLC
We agree with the Board that claim 1 does not solve
the alleged technical problem of missing an intended price.
Claim 1 recites “displaying . . . a plurality of graphical lo-
cations aligned along an axis” and “mapping, by the com-
puting device, the plurality of sequential price levels to the
plurality of graphical locations.” The only information re-
quired to be displayed are the plurality of graphical loca-
tions. The Board explained that its institution decision set
forth its understanding that claim 1 “provide[s] no indica-
tion to a user of market information, such as price, order
quantity, or order type[,] and the graphical locations
simply could be ‘black boxes’ with price values associated
with them, and no information provided to the user indicat-
ing that price value, the order quantity, or the order type.”
J.A. 14–15, No. 17-2621 (internal quotation marks omit-
ted). TT did not dispute this characterization of the claim.
Even if the specification recites an embodiment that solves
this problem, as TT alleges, claim 1 does not.
Claim 1 also recites that “mapping of the plurality of
sequential price levels does not change at a time when at
least one of the current highest bid price and the current
lowest ask price changes.” This limitation differs from
what is stated in the specification when discussing Figures
3 and 4, where it explains that “[t]he values in the price
column are static,” i.e., “they do not normally change posi-
tions unless a re-centering command is received.” ’374 pa-
tent at 7:32–34. We are not convinced that maintaining
the same mapping “at a time” when the price changes
solves the purported problem, as it does not specify what
happens immediately after the price changes.
TT also argues that the claimed invention improves
speed, accuracy, and usability compared to prior art GUI
tools, which are necessarily rooted in computer technology.
As discussed, these purported improvements are not tech-
nological. The specification states that the invention “pro-
vide[s] the trader with improved efficiency and versatility
in placing, and thus executing, trade orders for
TRADING TECHNOLOGIES INT'L v. IBG LLC 13
commodities in an electronic exchange.” ’374 patent at
3:21–24. This is focused on improving the trader, not the
functioning of the computer. Indeed, the specification
acknowledges that the invention “can be implemented on
any existing or future terminal with the processing capa-
bility to perform the functions described,” id. at 4:4–6, and
“is not limited by the method used to map the data to the
screen display,” which “can be done by any technique
known to those skilled in the art,” id. at 4:64–67.
We conclude that the Board’s reasoning that claim 1
did not solve a technical problem with a technical solution
was not arbitrary and capricious.
II. PATENT ELIGIBILITY
We review the Board’s legal conclusions de novo and its
factual findings for substantial evidence. Ameranth, 842
F.3d at 1236.
“Whoever invents or discovers any new and useful pro-
cess, machine, manufacture, or composition of matter, or
any new and useful improvement thereof,” may obtain a
patent. 35 U.S.C. § 101. As a judicially created exception
to this provision, “[l]aws of nature, natural phenomena,
and abstract ideas are not patent eligible.” Alice Corp. Pty.
Ltd. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014) (quoting
Assoc. for Molecular Pathology v. Myriad Genetics, Inc., 569
U.S. 576, 589 (2013)). All inventions at some level “em-
body, use, reflect, rest upon, or apply” these concepts, but
if an invention applies these concepts to a new and useful
end, it is patent eligible. Id. at 217. The Supreme Court
has established a two-step framework for “distinguishing
patents that claim laws of nature, natural phenomena, and
abstract ideas from those that claim patent-eligible appli-
cations of those concepts. Id. “First, we determine whether
the claims at issue are directed to” a patent-ineligible con-
cept. Id. If so, “we consider the elements of each claim both
individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of
14 TRADING TECHNOLOGIES INT'L v. IBG LLC
the claim’ into a patent-eligible application.” Id. (quoting
Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566
U.S. 66, 78–79 (2012)).
A. The ’999 Patent
At Alice step one, we must “determine whether the
claims at issue are directed to a patent-ineligible concept.”
Alice, 573 U.S. at 218. Under this inquiry, we evaluate “the
focus of the claimed advance over the prior art” to deter-
mine if the character of the claim as a whole, considered in
light of the specification, is directed to excluded subject
matter. Intellectual Ventures I LLC v. Capital One Fin.
Corp., 850 F.3d 1332, 1338 (Fed. Cir. 2017) (quoting Affin-
ity Labs of Tex., LLC v. DIRECTV, LLC, 838 F.3d 1253,
1257 (Fed. Cir. 2016)).
The parties treat claim 1 of the ’999 patent as repre-
sentative. The Board determined claim 1 is directed to “the
abstract idea of graphing (or displaying) bids and offers to
assist a trader to make an order.” J.A. 22, No. 18-1053. We
agree. The claim’s preamble states that it is a “computer
based method for facilitating the placement of an order for
an item and for displaying transactional information to a
user regarding the buying and selling of items.” The
method steps require “displaying” a plurality of bid and of-
fer indicators along a “scaled axis of prices,” “receiving
market information,” displaying that information along the
axis, and “displaying” information pertaining to a user’s or-
der. This essentially describes receiving information,
which the specification admits was already available to
“market makers,” ’999 patent at 1:35–41, and displaying
that information. “[W]e have treated collecting infor-
mation, including when limited to particular content
(which does not change its character as information), as
within the realm of abstract ideas.” Electric Power Grp.,
LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016).
Claim 1 also recites sending an order by “selecting” and
“moving” an order icon to a location along the price axis.
TRADING TECHNOLOGIES INT'L v. IBG LLC 15
This does not change our determination that the claims are
directed to an abstract idea. As the Board determined,
placing an order based on displayed market information is
a fundamental economic practice. J.A. 23–24, No. 18-1063
(citing J.A. 3379–80, No. 18-1063). The fact that the claims
add a degree of particularity as to how an order is placed
in this case does not impact our analysis at step one. See
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed.
Cir. 2014) (“Although certain additional limitations, such
as consulting an activity log, add a degree of particularity,
the concept embodied by the majority of the limitations de-
scribes only the abstract idea of showing an advertisement
before delivering free content.”).
The fact that this is a “computer-based method” does
not render the claims non-abstract. The specification indi-
cates the claimed GUI is displayed on any computing de-
vice. ’999 patent at 4:34–37, 6:6–8. As a general rule, “the
collection, organization, and display of two sets of infor-
mation on a generic display device is abstract.” Interval
Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1345 (Fed. Cir.
2018). Relying principally on Core Wireless Licensing
S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir.
2018), TT argues the claimed invention provides an im-
provement in the way a computer operates. We do not
agree. The claims of the ’999 patent do not improve the
functioning of the computer, make it operate more effi-
ciently, or solve any technological problem. Instead, they
recite a purportedly new arrangement of generic infor-
mation that assists traders in processing information more
quickly. E.g., ’999 patent at 2:39–41. We conclude that the
claims are directed to the abstract idea of graphing bids
and offers to assist a trader to make an order.
At step two, we “consider the elements of each claim
both individually and ‘as an ordered combination’ to deter-
mine whether the additional elements ‘transform the na-
ture of the claim’ into a patent eligible application.” Alice,
573 U.S. at 218 (quoting Mayo, 566 U.S. at 78–79). Step
16 TRADING TECHNOLOGIES INT'L v. IBG LLC
two “looks more precisely at what the claim elements add”
to determine if “they identify an inventive concept in the
application of the ineligible matter to which . . . the claim
is directed.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d
1161, 1167 (Fed. Cir. 2018) (internal quotation marks omit-
ted). The abstract idea itself cannot supply the inventive
concept, “no matter how groundbreaking the advance.” Id.
at 1171.
The Board held that the claims do not contain an in-
ventive concept. It determined that receiving market in-
formation is simply routine data gathering, and displaying
information as indicators along a scaled price axis is well-
understood, routine, conventional activity that does not
add something significantly more to the abstract idea.
J.A. 28, No. 18-1063 (citing, e.g., J.A. 2804, 3301, 3379–80,
No. 18-1063). It likewise determined that selecting and
moving an icon is well-understood, routine, conventional
activity. J.A. 28–29, No. 18-1063 (citing J.A. 3871–73, No.
18-1063). It considered the elements both individually and
as an ordered combination and concluded they did not
transform the claim into a patent eligible application of the
abstract idea. We agree.
B. The ’056 Patent
The parties treat claim 1 of the ’056 patent as repre-
sentative except as to dependent claims 5–7. Like the ’999
patent, the Board at step one determined claim 1 is di-
rected to “the abstract idea of graphing (or displaying) bids
and offers to assist a trader to make an order.” J.A. 20–21,
No. 17-2257. We agree. In claim 1 of the ’056 patent, the
preamble states the claim is a “method of operation used
by a computer for displaying transactional information and
facilitating trading.” The method steps require “receiving
bid and offer information,” “displaying” bid and offer indi-
cators associated with the information, “receiving a user
input indicating a default quantity,” “receiving” a selection
of a price along the price axis, and “sending” the order.
TRADING TECHNOLOGIES INT'L v. IBG LLC 17
We see no meaningful difference between these limita-
tions and the similar limitations of claim 1 in the ’999 pa-
tent and thus reach the conclusion that it too is directed to
an abstract idea. While the claims disclose different ways
of submitting orders and use slightly different terminology,
these differences have no effect on our eligibility determi-
nation at step one.
At step two, the Board held the elements, both individ-
ually and as an ordered combination, do not recite an in-
ventive concept. TT argues the claims improve computer
functionality by improving on the intuitiveness and effi-
ciency of prior GUI tools. The specification makes clear
that this invention helps the trader process information
more quickly. This is not an improvement to computer
functionality, as alleged by TT. We see no merit to TT’s
argument and affirm the Board’s conclusion that claims 1–
4 and 8–15 are patent ineligible.
TT separately argues that the additional limitations of
dependent claims 5–7 render the claims eligible. Claim 5
depends from claim 1 and further recites “displaying an or-
der icon at a location that corresponds to the desired price
level along the price axis, the order icon indicating the
user’s order at the electronic exchange.” Claims 6 and 7
each depend from claim 5 and recite further details about
the bid and offer indicators and the order icon. TT argues
the “order icon” of claim 5 must be a distinct icon from the
bid and offer indicators. These limitations do not change
our analysis, as simply displaying all the bids and offers in
the aggregate, including the user’s bids and offers, is not
enough.
We have considered TT’s arguments and find them to
be without merit.
C. The ’374 Patent
At step one, the Board held that claim 1 of the ’374 pa-
tent is directed to the abstract idea of receiving user input
18 TRADING TECHNOLOGIES INT'L v. IBG LLC
to send a trade order. It explained that “claim 1 only min-
imally requires collecting and analyzing information and
includes no requirement that any of that information is dis-
played. J.A. 16, No. 17-2621. This is because the claims
require “displaying . . . graphical locations along an axis”
but do not require the graphical locations to display the
price levels that are mapped to them. Based on the Board’s
understanding, the graphical locations need not provide
any information to the user. This understanding of claim
1 was laid out in the institution decision, and TT did not
dispute it.
Much of TT’s argument at step one is the same as its
argument that the patent is for a technological invention.
It argues claim 1 recites a specific, structured GUI that
solves the price-flipping problem of prior art interfaces. It
argues that such an improvement over prior art interfaces
inherently improves the functioning of a computer. These
arguments are unavailing.
TT had an opportunity to dispute the Board’s charac-
terization of the claims after institution but chose not to do
so. We agree with the Board that claim 1 is directed to the
abstract idea of receiving a user input to send a trade order.
At step two, the Board held the elements of claim 1,
individually or as an ordered combination, do not add an
inventive concept. It noted that the specification discloses
that the invention can be implemented “on any existing or
future terminal or device” and describes the programming
as insignificant. J.A. 20, No. 17-2621 (citing ’374 patent at
4:4–7, 4:60–67). It also noted that TT acknowledged that
conventional GUIs for electronic trading permitted a
trader to send an order electronically. J.A. 20, No. 17-2621
(citing J.A. 269, No. 17-2621).
TT repeats its argument that claim 1 improves com-
puter functionality by solving technological problems with
prior art electronic trading interfaces. But as previously
explained, claim 1 does not solve any purported
TRADING TECHNOLOGIES INT'L v. IBG LLC 19
technological problem. We have considered TT’s remaining
arguments with regard to claim 1 and the dependent
claims and find them to be without merit.
III. Prior Decisions
TT argues that because non-precedential decisions of
this court held that other TT patents were for technological
inventions or claimed eligible subject matter, we should
too. We are not bound by non-precedential decisions at all,
much less ones to different patents, different specifications,
or different claims. Each panel must evaluate the claims
presented to it. Eligibility depends on what is claimed, not
all that is disclosed in the specification. See Data Engine
Techs. LLC v. Google LLC, 906 F.3d 999, 1011–12 (Fed. Cir.
2018) (holding a claim from one patent ineligible and
claims from other patents that shared a specification eligi-
ble).
IV. Constitutionality of CBM Review
TT argues the decisions should all be vacated because
CBM review is unconstitutional. In a total of four sen-
tences in each of its opening briefs, TT raises challenges
based on a right to a jury under the Seventh Amendment,
separation of powers under Article III, the Due Process
Clause, and the Taking Clause. Such a conclusory asser-
tion with no analysis to the underlying challenge is insuf-
ficient to preserve the issue for appeal. See United States
v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1328 (Fed. Cir.
2013) (“It is well established that arguments that are not
appropriately developed in a party’s briefing may be
deemed waived.”); SmithKline Beecham Corp. v. Apotex
Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (holding that
“mere statements of disagreement . . . do not amount to a
developed argument” sufficient to preserve the issue). We
decline to address TT’s constitutional challenges.
20 TRADING TECHNOLOGIES INT'L v. IBG LLC
CONCLUSION
We have considered TT’s other arguments and find
them unpersuasive. For the foregoing reasons, we conclude
that the patents at issue are CBM eligible and that claims
1–15 of the ’056 patent, claims 1–35 of the ’999 patent, and
claims 1–36 of the ’374 patent are ineligible. In light of this
conclusion, we need not address Petitioners’ separate
ground that the claims of the ’056 patent would have been
obvious.
AFFIRMED