N OTE : This disposition is nonprecedential. 

# United States **Court of Appeals**  **for the Federal Circuit**

______________________
TRADING TECHNOLOGIES INTERNATIONAL, INC., Plaintiff

- Appellee

v.

CQG, INC., CQG, LLC, FKA CQGT, LLC, Defendants

- Appellants

______________________

2016

- 1616

______________________ Appeal from the United States District Court for the Northern District of Illinois in No. 1:05

- cv

- 04811, Judge Sharon Johnson Coleman.

______________________
Decided: January 1 8 , 2017

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E RIKA A RNER , Finnegan, Henderson, Farabow, Ga rrett & Dunner, LLP, Reston, VA, argued for plaintiff

appellee. Also represented by C ORY C. B ELL , Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Boston, MA; L EIF R. S IGMOND , J R

. , M ICHAEL D AVID G ANNON , J ENNIFER K URCZ , C OLE B RADLEY R ICHTER , McDonnell, Boehnen, Hulbert & Berghoff, LLP, Chicago, IL; S TEVEN B ORSAND , Trading Technologies International, Inc., Chicago, IL.TRADING TECHS

. INT ’ L , INC

. v. CQG , INC

. 2

J OHN C. O'Q UINN , Kirkland & Ellis LLP, Washington, DC, argued for defendants

- appellants. Also represented by K ENNETH R. A DAMO , E UGENE G ORYUNOV , M EREDITH Z INANNI , Kirkland & Ellis LLP, Chicago, IL; J OHN A. C OTIGUALA , A DAM G LENN K ELLY , W ILLIAM J OSHUA V OLLER III , Loeb & Loe b LLP, Chicago, IL.

A NDREW B ALUCH , Strain PLLC, Washington, DC, for amici curiae Gregory Dolin, Richard A. Epstein, Christ opher Frerking, Irina D. Manta, Adam Mossoff, Kristen J. Osenga, Michael Risch, Mark F. Schultz, Ted M. Siche lman, David O. Taylor. A lso represented by S TEPHEN G. N AGY , Strain PLLC, Washington, DC

.

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Before N EWMAN , O’M ALLEY , and W ALLACH , Circuit Judges.

N EWMAN , Circuit Judge

. The CQG companies appeal the decision of the United States District Court for the Northern District of Illinois

, holding that the asserted claims of U .S. Patent s No. 6,772,132 (“the ’132 patent”) and No. 6,766,304 (“the ’304 patent”) recite patent

- eligible subject matter in terms of 35 U.S.C. § 101. This appeal relates only to eligibility unde r Section 101. W e affirm the district court’s decision

. D ISCUSSION

Patent owner Trading Technologies International, Inc. (“TTI”) charged CQG with infringement of the ’132 patent and the ’304 patent. CGQ moved for judgment as a matter of law, asserting th at the claims of the se patents

are directed to patent

- ineligible subject matter

. The district court denied CGQ ’s motion, holding that the claims are not directed to an abstract idea and also that they recite an inventive concept, such that the subject matter is patent

- eligible under § 101. Trading Techs.TRADING TECHS

. INT ’ L , INC

. v. CQG , INC

. 3

Int’l, Inc. v. CQG, Inc. , No. 05

- cv

- 4811, 2015 WL 774655 (N.D. Ill. Feb. 24, 2015) (“Dist. Ct. op.”). CGQ appeal s th is holding

. The ’132 and ’304 patents describe and claim a met hod and system for the electronic trading of st ocks, bonds, futures, options and similar products

. The patents e xplain problem s that arise when a trader attempts to enter an order at a particular price, but misses the price b ecause the market moved before the order was entered and executed

. I t also sometimes occurred that trades were executed at different prices than intended, due to rapid market movement. This is the problem to which the se patents are directed.
The patent s are for “[a] method and system for redu cing the time it takes for a trader to place a trade when electronically trading on an exchange, thus increasing the likelihood that the trader will have orders filled at desir able prices and quantities.” ’132 patent, Abstract; ’304 patent, Abstract. T he patent s desc ribe a trading system in which a graphical user interface “display[s] the market depth of a commodity traded in a market, [ 1 ] including a dynamic display for a plurality of bids and for a plurality of asks in the market for the commodity and a static displa y of prices corresponding to the plurality of bids and asks.” ’132 patent col. 3

, ll. 11

– 16 ; ’ 304 patent col. 3

, ll. 15

– 20

. In t he patented system bid and asked prices are displayed dynamically along the static display, and the system pair s order s with t he static display of prices and prevents order entry at a changed price

. Both the ’132 and the ’304 patents have the same specification, and t he district court treated claim 1 in each

1 “A commodity’s market depth is the current bid and ask prices and quantities in the market.” ’132 patent col. 3

, ll. 69

– 61; ’304 patent col. 3

, ll. 63

– 65.TRADING TECHS

. INT ’ L , INC

. v. CQG , INC

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pa tent as representative, as agreed by the parties. We illustrate the analysis of § 101 with respect to method Claim 1 of the ’ 304 patent :

1 . A method for displaying market information r elating to and facilitating trading of a commodity being traded in an electronic exchange having an inside market with a highest bid price and a lo west ask price on a graphical user interface, the method comprising; dynamically displaying a first indicator in one of a plurality of locations in a bid display region, each location in the bid display region corresponding to a price level along a common static price axis, the fi rst indicator re presenting quantity associated

w ith at least one order to buy the commodity at the highest bid price currently available in the market;
dynamically displaying a second indicator in one of a plurality of loca tions in an ask display region, each location in the ask display region correspon ding to a price level along the common static price axis, the second indicator repre senting quantity associated with at least one order to sell the co mmodity at the low est ask price currently available in the market;
displaying the bid and ask display regions in rel ation to fi xed price levels positioned along the common static price axis such that w hen the i nside market changes, the price levels along the common static price ax is do not move and at least one of the fi rst and second indicators moves in the bid or ask display regions relative to the common static price axis;

d isplaying an order entry region comprising a pl urality of locations for receiving commands to sendTRADING TECHS

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trade orders, each location corresponding to a price level along the common static price axis; and in response to a selection of a particular location of the order entry region by a single action of a user input device, setting a plurality of param eters for a tr ade order relating to the commodity and sending the trade order to the electronic e xchange.
’304 patent col. 12

, l. 36

– col. 13

, l. 3

. The ’132 claims are directed to similar subject matter covering a method and system

. The Court ’s opinion in Alice Corporation Pty. Ltd. v. CLS Bank International

, 134 S.Ct. 2347 (201 4 ), provides the framework for patent

- eligibility of business methods

. The C ourt explained that a patent’s claim falls outside § 101 where (1) it is “directed to” a patent

- ineligible conc ept, i.e. , a law of n ature, natural phenomenon, or abstract idea, and (2), if so, the particular elements of the claim, co nsidered “both individually and ‘as an ordered co mbination,’” do not add enough to “‘transform the nature of the claim’ into a patent

- eligible applic ation.”

Id. at 2355 (citations omitted)

. Patent eligibility under § 101 is an issue of law , and receives de novo determin ation on appeal

. 2

2 The parties dispute whether the district court erred in requiring proof of ineligibility under § 101 by clear and convincing evidence. Because our review is de novo, and because un der either standard the legal r equirements for patentability are satisfied, we need not address this dispute.TRADING TECHS

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. v. CQG , INC

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The district court first applied Step 1 of this two

- step framework

. T he court held that, rather than reciting “a mathematical algorithm,” “a fundamental economic or longstanding commercial practice,” or “a challenge in business ,” the challenged patents “solve problems of prior graphical user interface devices

. . . in the context of computer ized trading [] relating to speed, accuracy and usability.” Dist. C t. op. at *4 ( citations omitted). The
court found that the se patents are directed to improv ements in existing graphical user interface devices that have no “pre

- electronic trading analog ,” and recite more than “‘ setting, displaying, and selecting ’ data or info rmation that is visible on the [graphical user inter face] device. ” Id.

The district court explained that the challenged p atents do not simply claim displaying information on a graphical user interface. The claims require a specific, structured graphical user interface paired with a pr escribed functionality directly related to the graphical user interface’s structure that is addressed to and resolves a specifically identified pr oblem in the prior state of the art. The district court concluded that the patented subject matter meets the eligibility standards of Alice Step 1. We agree with this conclusion, for all of the reasons articula ted by the district court, including that the graphical user interface system of these two patents is not an idea that has long existed , the threshold criterion of an abstract idea and ineligible concept, as the court explained in Mayo Collaborative Services v. Prometheus Laboratories, Inc.

, 566 U.S . 66, 73 (2012) ( the patent must “amount to significantly more in practice than a patent upon the [ineligible concept itself]”).

The district court alternatively continued the analysis under Alice Step 2

, and determined that the challenged claims recite an “ inventive concept .” The court observed that S tep 2 “requires something different than pre

- AIA §§ 102 and 103 .” Dist. Ct. op. at 8. The court identified theTRADING TECHS

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static price index as an inventive concept that allows traders to more efficien tly and accurately place trades using this electronic trading system. The court disti nguished this system from the routine or conventional use of computers or the Internet , and concluded that the specific structure and concordant functionality of the
grap hical user interface are removed from abstract ideas, as compared to convent ional computer implementations of known procedures. Thus t he court held that the criteria of Alice Step 2 were also met.

The district court ’s ruling s are in accord with prec edent. Precedent has recognized that specific technologic modifications to solve a problem or improve the functio ning of a known system generally produce patent

- eligible subject matter

. In DDR Holdings, LLC v. Hotels.com, L.P. , 773 F.3d 1245 (Fed. Cir. 2014 ), the court upheld the patent eligibility of claims “ necessarily rooted in computer technology ” that “ overcome a problem specifically arising in the realm of computer networks

. ” Id . at 1257. Simila rly, “claimed process[es] us[ing] a combined order of speci fic rules” that improved on existing technological processes were deemed patent

- eligible in McRO, Inc. v. Bandai Namco Games America Inc.

, 837 F.3d 1299, 131 5 (Fe d. Cir. 2016). Claims that were “directed to a specific i mprovement to the way computers operate, embodied in [a] self

- referential table,” were deemed eligible in Enfish, LLC v. Microsoft Corp. , 822 F.3d 1327, 1334 (Fed. Cir. 2016 ). Illustrating the operation of t his principle to facts that negate d patent eligibility

, claims “drawn to the idea itse lf” of “out -of- region broadcasting on a cellular telephone

, ” without implementing programmatic structure, were deemed ineligible in Affinity Labs of Tex. v. DIRECTV, LLC , 838 F.3d 1253, 1258 (Fed. Cir. 2016)

. Similarly, claims directed to the “idea of generating a second menu from a first menu and sending the second menu to anot her location ” were held patent

- ineligible in Apple, Inc. v.TRADING TECHS

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. v. CQG , INC

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Ameranth, Inc. , 842 F.3d 1229 (Fed. Cir. 2016)

. C laims directed to the “ process of gathering and analyzing info rmatio n of a specified content, then displaying the results, ” without “ any particular assertedly inventive technology for performing those functions ,” were held ineligible in Electric Power Grp., LLC v. Alstom S.A. , 830 F.3d 1350, 1354 (Fed. Cir. 2016)

. As thes e cases illustrate, i neligible claims generally lack steps or limitations specific to solution of a problem

, or improve ment in the functioning of technology.
For some computer

- implemented methods, software may be essen tial to conduct the contemplated impro vements. Enfish , 822 F.3d at 1339 (“Much of the advanc ement made in computer technology consists of improvements to software that, by their very nature, may not be defined by particular physical features but rather by logical structures and processes.”). Abstraction is avoided or overcome when a proposed new application or computer

- implemented function is not simply the genera lized use of a computer as a tool to conduct a known or obvious process, but instead is an improvement to the capability of the system as a whole

. Id. at 1336. We reiterate the Court’s recognition that “at some level, all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Alice

, 134 S. Ct. at 2354, quoting Mayo 566 U. S.
at 71 . This threshold level of eligibility is often usefully explored by way of the substantive statutory criteria of patentability, for an invention that is new, useful and unobvious is more read i ly distinguished from the genera lized knowledge that characterizes ineligible subject
matter. This analysis is facilitated by the Court’s gui dance whereby the claims are viewed in accordance with “the general rule that patent claims ‘must be considered as a whole’.” Alice

, 134 S. Ct. at 2355 n.3
, quoting Di amond v. Diehr, 450 U.S. 175, 188 (1981).TRADING TECHS

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. v. CQG , INC

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As demonstrated in recent jurisprudence directed to eligibility, and as illustrated in the cases cited ante , the claim elements are considered in combination for evalu ation under Alice Step 1, and then individua l ly when Alice Step 2 is r e ached. See BASCOM Global Internet Services v. AT&T Mobility LLC , 827 F.3d 1341 (Fed. Cir. 2016). Applying an overview of this evolving jurisprudence, the public interest in innovative advance is best served when close questions of eligibility are considered along with the understanding flowing from review of the patentability criteria of novelty, unobviousness, and enablement, for when these classical criteria are evaluated , the issue of subject matter eligibility is placed in the context of the patent

- based incentive to technologic progress.

C ONCLUSION It is not disputed that the TTI System improves the

accura cy of trader transactions

, utilizing a software

implemented programmatic met. For Section 101 purpo ses, precedent does not consider the substantive criteria of patentability. F or Section 101 purposes, th e claimed subject matter is “directed to a specific improvement to the way computers operate,” id., for the claimed graphical user interface method i mparts a specific functionality to a trading sys tem “directed to a specific implementation of a solution to a problem in the software arts.” Id. at 1339.

The district court’s analysis and conclusions conform to prece dent. The decision that the subject matter claimed in the ’132 and ’304 patents is patent

- eligible in terms of Section 101 is affirmed. No other statutory criteria of patentability are before us on this appeal, and we state no opinion thereon

. AFFIRMED