Ex Parte 7024387 et al

Patent Trial and Appeal Board

Jun 24, 2015

95002032 (P.T.A.B. Jun. 24, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
95/002,032 07/02/2012 7024387 6208-0103PUS1 6972
2292 7590 06/24/2015
BIRCH STEWART KOLASCH & BIRCH, LLP
PO BOX 747
FALLS CHURCH, VA 22040-0747
EXAMINER
CARLSON, JEFFREY D
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
06/24/2015 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
CHICAGO MERCANTILE EXCHANGE, INC.
Requester and Appellant

v.

5
TH
MARKET
Patent Owner and Respondent
____________________

Appeal 2014-008891
Reexamination Control 95/002,032
Patent 7,024,387 B1
Technology Center 3900

____________

Before JOHN A. JEFFERY, MICHAEL R. ZECHER, and
ANDREW J. DILLON, Administrative Patent Judges.

DILLON, Administrative Patent Judge

DECISION ON APPEAL

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STATEMENT OF THE CASE
Requester appeals under 35 U.S.C. § 134(b) (2002) from the
confirmation by the Examiner of the patentability of claims 1, 4, 7, 8, and
10. We have jurisdiction under 35 U.S.C. § 315 (2002).
An oral hearing was held on May 27, 2015. A transcript of that
hearing was entered into the record on June 15, 2015.
We affirm-in-part.

Invention
The '387 patent describes an apparatus and method of automatically
and anonymously buying and selling positions in fungible properties
between subscribers. The specific embodiment described in the disclosure
relates to the buying and selling of securities or contracts where the offer to
purchase or sell the property may be conditioned upon factors such as the
ability to purchase or sell other property or the actual purchase or sale
of other property. Abstract.

Claims
Claims 1, 3-5 and 7-12 are subject to reexamination. Claims 3, 5, 9,
11, and 12 have been rejected and have not been appealed. Claims 1-12 are
original patent claims. Claims 1 and 7 are independent.
Claim 1 is illustrative.
1. A conditional order transaction network that matches
or compares buy and sell orders for a plurality of
items based upon conditions set forth within the order,
including a price represented as an algorithm with
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constraints thereon, the conditional order transaction
network comprising:

a variable number of trader terminals for entering
an order for an item in the form of an algorithm with
constraints thereon that represent a willingness to
transact, where the price is the dependent variable of
the algorithm within the constraints and dynamically
changing price of another item is an independent
variable, the price as the dependent variable being
continuously changeable responsive to changes in
price of the independent variable, the algorithm
representing a buy or sell order;

controller computer means coupled to each of the
trader terminals over a communications network and
receiving as inputs, each algorithm with its
corresponding constraints;

means for matching, in accordance with the
constraints and conditions, algorithmic buy orders
with algorithmic sell orders; one of the conditions
being the requirement that two or more securities are
tradable contemporaneously as a contingent trade of
those respective securities, and

means for matching or comparing, in accordance
with the constraints and conditions, algorithmic
buy/sell orders with non-algorithmic sell/buy orders;
one of the conditions being the requirement that two
or more securities are tradable contemporaneously as
a contingent trade of those respective securities, and

wherein the order algorithm can be represented as
a line in two dimensional space with constraints
having the price of one security as one axis and the
price of another security as its other axis.

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Prior Art
Memorandum from the Commodity Futures Trading Commission on the
New York Mercantile Exchange’s (“NYMEX”) Proposal to Implement the
NYMEX ACCESS Trading System (Dec. 7, 1992) (on file with the
Commodity Futures Trading Commission) (“CFTC”);

Electronic Trading Systems: Strategic Implications of Market Design
Choices, Stern School of Business by Levecq, H and Bruce W. Weber
(Mar. 3, 1995) (hereinafter referred to as "Levecq");

SYCOM III User Guide (Oct. 1996) (hereinafter referred to as "SYCOM”);

Eric K. Clemons & Bruce W. Webber, Restructuring Institutional Block
Trading: An Overview of the Optimark System, Working Paper Series S-97-
21 (Oct. 1997) (on file with the N.Y. University, Leonard N. Stern School of
Business) (“Clemons”);

Record Volume on ITG Trading Desk, ITG Connect (Spring 1996)
(hereinafter referred to as "Record Volume");

Combination Trading with Limit Orders, Journal of Applied Mathematics &
Decision Sciences, 1(2), 133-150 (1997) by Schellhorn, H. (hereinafter
referred to as "Schellhorn");

Globex User Guide, REUTERS Ltd. (1997) (“Globex User Guide”);

Globex Member's Handbook (June 1992) (hereinafter referred to as "Globex
Member's Handbook");

Allan D. Grody et al., Global Electronic Markets A Preliminary Report of
Findings (Center for Digital Economy Research, Working Paper No.
STERN IS-95-18, 1994) (“Grody”);

IPE (International Petroleum Exchange) ETS Workstation User Manual
(Sept. 1996) (hereinafter referred to as "IPE Workstation").

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Requester’s Contentions

Requester contends that the Examiner erred in declining to enter the
following proposed grounds of rejections against claims 1, 4, 7, 8, and 10
(App. Br. 5):
A. The proposed rejection of claim 7 under 35 U.S.C. § 103(a) as
being unpatentable over CFTC and Levecq;
B. The proposed rejection of claim 1 under 35 U.S.C. § 103(a) as
being unpatentable over CFTC and Levecq;
C. The proposed rejection of claim 1 under 35 U.S.C. § 103(a) as
being unpatentable over CFTC and SYCOM;
D. The proposed rejection of claims 1, 4, 7, 8, and 10 under 35 U.S.C.
§ 103(a) as being unpatentable over Clemons, Record Volume, and
Schellhorn;
E. The proposed rejection of claim 1 under 35 U.S.C. § 103(a) as
being unpatentable over Globex User Guide and Globex Member’s
Handbook;
F. The proposed rejection of claims 1 and 7 under 35 U.S.C. § 103(a)
as being unpatentable over Grody and IPE Workstation.

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ANALYSIS
We address each of Requester’s contentions ad seriatim, in the order
they were presented.
Contention A
Requester argues that the Examiner’s confirmation of claim 7 as
patentable over CFTC and Levecq is unreasonable, given the adoption of the
rejection of claim 9 over CFTC and Levecq, in view of the marked similarity
between claim 7 and claim 9. App. Br. 7-8.
As Requester demonstrates in a side-by-side comparison on pages 7
and 8 of the Appeal Brief, claims 7 and 9 are strikingly similar. Yet claim 9
was rejected, but claim 7 was not, despite the non-adopted rejection citing
the same prior art references cited in the obviousness rejection of claim 9—a
rejection that was not appealed. See Resp. Br. 4 (noting this point); see also
Reb. Br. 4 (same).
Claims 7 and 9 differ in their preambles, and applying the term
“dynamically changing” to different algorithm variables. App. Br. 8
(acknowledging these differences). These minor differences, however, do
not justify treating one claim as patentable, and the other unpatentable over
the same prior art references, particularly in view of the variables’
interrelationships as Requester indicates. Id.
To be sure, the proposed rejection of claim 7 cites the same references
as the claim 9 rejection, yet applies them somewhat differently in connection
with the “segment for matching or comparing” limitation, but the proposed
rejection of claim 7 cites only Levecq for this feature. Id.
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Despite this difference, we see no reason to treat these claims any
differently on this record, particularly in light of our obligation to ensure
consistent patentability determinations in reexamination proceedings under
established precedent. See Q.I. Press Controls, B.V. v. Lee, 752 F.3d 1371,
1382–83 (Fed. Cir. 2014). Where, as here, all relevant references are before
us, “an obligation is owed to the public not to permit inconsistent results
when a proper challenge to that inconsistency is made on appeal.” Id. at
1383. To treat similar claims 7 and 9 differently over the same prior art
references as the Examiner has done yields the very inconsistency that we
are obligated to prevent under the court’s mandate.
To be sure, the court qualified its statement that our obligation to not
to permit inconsistent results arises “when a proper challenge to that
inconsistency is made on appeal.” Id. (emphasis added). Therefore, not just
any such challenge to an inconsistency will suffice: it must be proper.
This begs the question whether a proper challenge to an inconsistency
can be raised on appeal, despite such an issue going beyond the scope of the
question raised by the reexamination request—a question that is answered
by the reexamination proceeding. See Belkin Int’l, Inc. v. Kappos, 696 F.3d
1379, 1382 (Fed. Cir. 2014). As the court in Belkin indicates, the scope of
reexamination is limited to only those patentability issues raised in the
request. Id. But where, as here, a proposed rejection of a claim is based on
the same prior art references as those used by the Examiner in rejecting a
substantially similar claim, a challenge to an inconsistency in patentability
determinations of those claims on appeal is proper, despite the application of
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those references to certain recited limitations differing from that proposed in
the request.
In this instance, Requester’s inconsistency challenge comports
reasonably with the scope of the issues raised in the request, namely whether
claims 7 and 9 would have been obvious over the collective teachings of
CFTC and Levecq. To be sure, the different bases for applying the cited
references for the “segment for matching or comparing” limitations in
claims 7 and 9 arguably constitute different grounds of rejection despite
Requester’s contentions to the contrary at the oral hearing. See Oral Hearing
Transcript filed June 15, 2015, at 19–20. Nevertheless, the fact remains that
the same prior art references were before the Examiner in reaching
diametrically opposite patentability determinations for substantially similar
claims—the very inconsistency we have an obligation to prevent under Q.I.
Press Controls.
Lastly, to the extent that Patent Owner contends that to enter a new
ground of rejection to cure the above-noted inconsistency presupposes
improperly that the Examiner’s rejection of claim 9 was correct as was
suggested at the oral hearing (see Transcript, at 28–29), no such argument
regarding any purported error in that rejection was raised earlier.
Accordingly, any arguments that the Examiner erred in rejecting claim 9 are
waived.
In short, the same prior art references were before the Examiner in
reaching diametrically opposite obviousness determinations for claims 7 and
9—claims that are strikingly similar. This is the very inconsistency we have
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an obligation to prevent under Q.I. Press Controls. Consequently, we find
the Examiner erred in failing to reject claim 7.

Contention B
Requester argues that the Examiner erred by not adopting the
proposed rejection of claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over CFTC and Levecq. Requester notes the basis for the
Examiner’s failure to adopt this rejection was the alleged failure of the cited
references to show or suggest “the order algorithm can be represented as a
line in two dimensional space with constraints having the price of one
security as one axis and the price of another security as its other axis." App.
Br. 13.
Requester asserts that the order algorithm of CFTC can be represented
as a line in a two dimensional space, particularly CFTC’s so-called “crack”
spread order which Requester urges can be represented as a line in two
dimensional space with constraints having the price of one security as one
axis and the price of another security as a second axis. Id. at 14.
Patent Owner argues that Requester’s assertion is mere speculation
and is supported by an unsuccessful argument of inherency, which cannot
take the place of “substantial evidence.” Resp. Br. 6-7.
The bases for the Examiner’s failure to adopt the rejection set forth in
contention B, as set forth in the Action Closing Prosecution (A.C.P.), are
listed as follows: 1) the failure of Requester to set forth what claimed
feature is missing from CFTC, what particular claimed feature in Levecq
would have been used to modify CFTC and in what way, and why such
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modification would have been made, leading to a clear articulation of the
reasons why the claimed invention would have been obvious; and 2) the
failure of the cited references to show or suggest “the order algorithm can be
represented as a line. . . “ A.C.P. 7. We find that, although Requester
responded at length regarding the inherent capability of the references to
represent an order algorithm “as a line in two dimensional space,” Requester
fails to address the Examiner’s position regarding what claimed feature is
missing from CFTC, what particular claimed feature in Levecq would have
been used to modify CFTC and in what way, and why such modification
would have been made. With regard to the second enumerated issue, we
find the phrasing “can be” is permissible language that renders the claim
language that follows optional, under a broadest reasonable interpretation of
the language. Consequently, we find that the prior art is not required to
demonstrate the representation of an order algorithm “as a line in two
dimensional space.”
Nevertheless, in view of Requester’s failure to address the manner in
which CFTC and Levecq are to be combined, as noted above, we find the
Examiner did not err in declining to adopt the proposed rejection of claim 1
under 35 U.S.C. § 103(a) as being unpatentable over CFTC and Levecq.

Contention C
Requester argues that the Examiner erred in declining to adopt
the proposed rejection of claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over CFTC and SYCOM. App. Br. 16-18.
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As set forth in the Action Closing Prosecution, the basis for the
Examiner’s declining to adopt this proposed rejection is substantially
identical to that set forth above with respect to Contention B.
Compare A.C. P. 7, with A.C.P. 8.
As above, we find the Requester responded at length regarding
the representation of an order algorithm “as a line in two dimensional
space,” which we find to be optional language, but failed to address
the Examiner’s position based upon Requester’s failure to set forth
what claimed feature is missing from CFTC, what particular claimed
feature in SYCOM would have been used to modify CFTC and in
what way, and why such a modification would have been made.
Indeed, Requester, when arguing in support of this proposed rejection,
fails to mention SYCOM at all. Consequently, we find the Examiner
did not err by failing to adopt the rejection of claim 1.

Contention D
Requester argues that the Examiner erred in failing to adopt the
proposed rejection of claims 1, 4, 7, 8, and 10 under 35 U.S.C.
§ 103(a) as being unpatentable over Clemons, Record Volume, and
Schellhorn. App. Br. 18-29.
In the Action Closing Prosecution, the Examiner found that this
proposed rejection failed to set forth a prima facie case of
obviousness, with regard to claim 1, for failing to demonstrate where
the prior art suggested “the order algorithm can be represented as a
line. . .” Further, the Examiner found that Requester had failed to set
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forth what features were missing from Clemons and what features of
Record Volume would have been used to modify Clemons. The
Examiner found that Record Volume did not provide a teaching that a
dependent price variable changes as an independent price variable
changes. The Examiner also notes that, while Clemons is noted as
“contemporaneously tradable,” it is not clear that Clemons teaches
“contemporaneously tradable as a contingent trade.” A.C.P. 11
(emphasis omitted).
We have addressed the claim language setting forth “the order
algorithm can be represented as a line. . . ” above, noting our finding that the
claim language following “can be,” under a broadest reasonable
interpretation, represents an optional feature of the claimed invention. In the
Appeal Brief, Requester acknowledges the Examiner’s objection to the
failure of the proposed references to show or suggest “contemporaneously
tradable as a contingent trade;” however, Requester once again fails to
identify the source of such teaching within the proposed rejection.
Consequently, we find no error in the Examiner’s declining to adopt the
proposed rejection of claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over Clemons, Record Volume, and Schellhorn.
In the Action Closing Prosecution, the Examiner found that this
proposed rejection failed to set forth a prima facie case of obviousness, with
regard to claim 7, for failing to set forth clearly what elements are missing
from Clemons and what features of Record Volume would have been used
to modify Clemons, in what way. The Examiner finds that Record Volume
fails to show or suggest a teaching that a dependent price variable changes as
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an independent price variable changes. The Examiner also finds it is not
clear how Record Volume is relied upon to suggest “a segment for
controlling a computer coupled to each of the trader terminal.” The
Examiner acknowledges that Clemons may teach pricing from an external
exchange, but finds it unclear where Clemons teaches such external pricing
as the claimed independent variable. A.C.P. 13.
Requester asserts various reasons why claim 7 should be rejected
under 35 U.S.C. § 103(a) as being unpatentable over Clemons, Record
Volume, and Schellhorn, but fails to set forth clearly the proposed manner in
which these references should be combined. Specifically, Requester fails to
set forth where the combined references suggest a teaching that a dependent
price variable changes as an independent price variable changes or teach
external pricing as the claimed independent variable, as set forth in claim 7.
App. Br. 23-26.
We decline to address the application of Clemons, Record Volume,
and Schellhorn to claims 4, 8, and 10, which depend from claims 1 and 7, for
the reasons set forth above. We, thus, find that the Examiner did not err in
failing to adopt the rejection of claims 1, 4, 7, 8, and 10 under 35 U.S.C.
§ 103(a) as being unpatentable over Clemons, Record Volume, and
Schellhorn.

Contention E
Requester argues the Examiner erred in failing to adopt the proposed
rejection of claim 1 under 35 U.S.C. § 103(a) as being unpatentable over
Globex User Guide and Globex Member’s Handbook. App. Br. 29-30.
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In the Action Closing Prosecution, the Examiner found that this
proposed rejection failed to set forth a prima facie case of obviousness, with
regard to claim 1, for failing to demonstrate where the prior art suggested
“the order algorithm can be represented as a line. . . ” Further, the Examiner
found that Requester had failed to set forth what features were missing from
the Globex User Guide and what features of the Globex Member’s
Handbook would have been used to modify the Globex User Guide.
A.C.P. 9.
We have addressed the “the order algorithm can be represented as a
line. . . ” above, and for the same reasons we set forth above, we find the
failure of the references to show or suggest this optional feature does not
serve as a basis for failing to adopt the proposed rejection.
Requester argues that the proposed rejection should have been
adopted by the Examiner, but failed to set forth the manner in which the two
references should be combined in the request for reexamination. In the
original request for reexamination, the Requester proposed the Global
Members Handbook as suggesting that it would have been obvious to
“combine two user guides for the Globex trading system.” Req. Reexam.
Exhibit 13, pp. 2-3. In the present Appeal Brief, Requester cites the Global
Members Handbook in support of the allegation that these references
disclose that an order algorithm can be represented as a line in two
dimensional space. App. Br. 30.
Requester has failed to set forth a viable basis for asserting that the
Examiner erred in declining to adopt the proposed rejection of claim 1 under
35 U.S.C. § 103(a) as being unpatentable over Globex User Guide and
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Globex Member’s Handbook. In its Appeal Brief, Requester proposes a
rejection based upon alternate portions of the cited references, which, in our
view, is not germane to the issue of whether or not the Examiner erred in
failing to adopt the rejection initially proposed in the original request for
reexamination. We, therefore, find the Examiner did not err in failing to
adopt the rejection of claim 1 under 35 U.S.C. § 103(a) as being
unpatentable over Globex User Guide and Globex Member’s Handbook.

Contention F
Requester argues the Examiner erred by declining to adopt the
proposed rejection of claims 1 and 7 under 35 U.S.C. § 103(a) as being
unpatentable over Grody and IPE Workstation. App. Br. 31-33.
In the Action Closing Prosecution, the Examiner found that this
proposed rejection failed to set forth a prima facie case of obviousness, with
respect to claim 1, for failing to show or suggest “the order algorithm can be
represented as a line. . . ” Additionally, the Examiner found that Requester
failed to express clearly what features were missing from the Grody
reference, and what features of IPE Workstation could be used to modify
Grody, in what way, along with why such a modification would have been
obvious. A.C.P. 10.
With respect to claim 7, the Examiner found the Requester failed to
express clearly what features were missing from the Grody reference, and
what features of IPE Workstation could be used to modify Grody, in what
way, along with why such a modification would have been obvious.
Further, the Examiner found that the “price borrowing” of Grody did not
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provide a teaching to use an external price feed for prices used as an
independent variable. Id. at 10-11.
With respect to claim 1, we have found that the language reciting “the
order algorithm can be represented as a line. . . ” to be optional, under a
broadest reasonable interpretation. However, the Requester only argues the
Examiner has “misinterpreted the disclosures of Grody and IPE
Workstation,” and fails to address the Examiner’s assertion that Requester
has failed to express clearly what features were missing from the Grody
reference, and what features of IPE Workstation could be used to modify
Grody, in what way, along with why such a modification would have been
obvious. In the absence of contrary argument by Requester, we find the
Examiner did not err in declining to adopt the rejection of claim 1 under
35 U.S.C. § 103(a) as being unpatentable over Grody and IPE Workstation.
With respect to claim 7, Requester acknowledges the Examiner’s
finding that the “price borrowing” of Grody did not provide a teaching to use
an external price feed for prices used as an independent variable; however,
Requester once again points out the availability of external pricing, but fails
to provide an indication that Grody utilizes such external price information
as an independent variable, as claimed. Consequently, we find the
Examiner did not err in failing to adopt the proposed rejection of claim 7
under 35 U.S.C. § 103(a) as being unpatentable over Grody and IPE
Workstation.
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DECISION
The Examiner’s decision not to adopt the listed proposed rejections of
claims 1, 4, 8, and 10 is affirmed. The Examiner’s decision not to adopt the
proposed rejection of claim 7 is reversed.
Pursuant to 37 C.F.R. § 41.77(a), the above-noted reversal constitutes
a new ground of rejection. Section 41.77(b) provides that “[a] new ground
of rejection . . . shall not be considered final for judicial review.” That
section also provides that Patent Owner, WITHIN ONE MONTH FROM
THE DATE OF THE DECISION, must exercise one of the following two
options with respect to the new grounds of rejection to avoid termination of
the appeal proceeding as to the rejected claims:

(1) Reopen prosecution. The owner may file a response
requesting reopening of prosecution before the examiner.
Such a response must be either an amendment of the
claims so rejected or new evidence relating to the claims
so rejected, or both.

(2) Request rehearing. The owner may request that the
proceeding be reheard under § 41.79 by the Board upon
the same record. The request for rehearing must address
any new ground of rejection and state with particularity
the points believed to have been misapprehended or
overlooked in entering the new ground of rejection and
also state all other grounds upon which rehearing is
sought.

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In accordance with 37 C.F.R. § 41.79(a)(1), the “[p]arties to the
appeal may file a request for rehearing of the decision within one month of
the date of: . . . [t]he original decision of the Board under § 41.77(a).” A
request for rehearing must be in compliance with 37 C.F.R. § 41.79(b).
Comments in opposition to the request and additional requests for rehearing
must be in accordance with 37 C.F.R. § 41.79(c)–(d), respectively. Under 37
C.F.R. § 41.79(e), the times for requesting rehearing under paragraph
(a) of this section, for requesting further rehearing under paragraph (c) of
this section, and for submitting comments under paragraph (b) of this section
may not be extended.
An appeal to the United States Court of Appeals for the Federal
Circuit under 35 U.S.C. §§ 141–144 and 315 and 37 C.F.R. § 1.983 for an
inter partes reexamination proceeding “commenced” on or after
November 2, 2002 may not be taken “until all parties’ rights to request
rehearing have been exhausted, at which time the decision of the Board is
final and appealable by any party to the appeal to the Board.” 37 C.F.R.
§ 41.81. See also MPEP § 2682 (8th ed., Rev. 8, July 2010).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
Requests for extensions of time in this inter partes
reexamination proceeding are governed by 37 C.F.R. § 1.956. See 37
C.F.R. § 41.79.

AFFIRMED-IN-PART
37 C.F.R. 41.77(a)

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Patent Owner:

Birch Stewart Kolasch & Birch, LLP
P.O. Box 747
Falls Church, VA 22040-0747

Third Party Requester:

Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
901 New York Avenue, NW
Washington, DC 20001-4413