# 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

- 2323

______________________

Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No s . CBM2015

- 00172, CBM2016

- 00040.

______________________

Decided: April 30, 2 019

______________________

J ENNIFER K URCZ

, Baker & Hostetler LLP, Chicago, IL, argued for appellant. Also represented by L EIF R.
S IGMOND

, J R

., M ICHAEL D AVID G ANNON ; A LAINA J.
L AKAWICZ , Philadelphia, PA; C OLE B RADLEY R ICHTER

, McDonnell, Boehnen, Hulbert & Berghoff, LLP, Chicago, IL; S TEVEN B ORSAND

, J AY Q UENTIN K NOBLOCH , Trading Technologies International, Inc. , Chicago, IL

.TRADING TECHNOLOGIES INTL v. IBG LLC 2

R ICHARD M. B EMBEN

, Sterne Kessler Goldstein & Fox,PLLC, Washington, DC, argued for appellees. Also represented by R OBERT E VAN S OKOHL ; M ICHAEL T. R OSATO , Wilson, Sonsini, Goodrich & Rosati, PC, Seattle, WA.

K

ATHERINE T WOMEY A LLEN

, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor. Also represented by M ARK R

. F REEMAN

, S COTT R. M C I NTOSH

, J OSEPH H. H UNT ; T HOMAS W. K RAUSE

, J OSEPH M ATAL

, F ARHEENA Y ASMEEN R ASHEED

,Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA.

______________________

Before M OORE

, C LEVENGER

, and W ALLACH

, Circuit Judges.

M OORE

, Circuit Judge

.Trading Technologies International, Inc., (“TT”) appeals a decision of the Patent Trial and Appeal Board holding claims 1

– 22 of U.S. Patent No. 7,783,556 ineligible
under 35 U.S.C. § 101. Because we agree that the patentis a covered business method patent and the claims are ineligible, we affirm.

B ACKGROUND

TT is the owner of the ’556 patent, which “relates to displaying market information on a screen.” ’556 patent at

1:7

– 9. The specification states that the invention works “particularly well” with the trading screen shown in Figure

2. Id. at 3:8

– 11. Figure 2 is a prior art trading screen disclosed in U.S. Patent No. 6,772,132, which displays bids
and offers in association with price values along an axis.
Id. at 2:9

– 14, 3:12

– 16, Fig. 2. According to the specification, “traders are often interested in analyzing other piecesof highly relevant information that are not normally provided in an electronic exchange’s data feed nor d isplayed by a trading screen.” Id. at 2:18

– 22. Traders may “make quick mental calculations, use charting software, or look toTRADING TECHNOLOGIES INTL v. IBG LLC 3

other sources to provide additional insight beyond what is normally provided.” Id. at 2:22

– 25.

The specification discloses “gen erating values that are derivatives of price and then displaying these values along
an axis on a screen.” Id. at 3: 22

– 25. The claims focus on a particular price derivative, profit and loss (“P&L”). The specification acknowledges that “there are numerous ways to calculate P&L and one of ordinary skill in the art would recognize the many different possibilities.” Id. at 13:61

– 63. Claim 1 recites:

1. A method for displaying market information on a graphical user interface, the method comprising:

receiving by a computing device a current highest bid price and a current lowest askprice for a tradeable object from an electronic exchange;

identifying by the computing device a longor short position taken by a user with respect to the tradeable object, wherein the long position is associated with a quantity of the tradeable object that has been bought by the user at a price, and wherein the short position is associated with a quantity of the tradeable object that has been sold by the user at a price;

computing by the computing device a plurality of values based on the long or short position, wherein each of the plurality of values represents a profit or loss if the long or short position is closed at a price levelamong a range of price levels for the tradeable object;

displaying via the computing device the plurality of values along a value axis;TRADING TECHNOLOGIES INTL v. IBG LLC 4

displaying via the computing device a first indicator at a first location corresponding to a first value along the value axis, wherein the first indicator represents aparticular price based on any of the following prices: current best bid, current best ask, and a last traded price, and whereinthe first value represents a profit or loss incurred by the user if the long or short position is closed at the particular price ; and

moving the first indicator relative to thevalue axis to a second location corresponding to a second value along the value axis responsive to receipt of an update to the particular price, wherein the second value represents a profit or loss incurred by the user if the position is closed at the update to the particular price.

IBG LLC and Interactive Brokers LLC (collectively, “Petitioners”) petitioned for review of claims 1

– 22 of the’556 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”). The Board instituted CBM review and issued a final written decision holding that the patent meets the criteria to be eligible for CBM review and the claims are ineligible under 35 U.S.C. § 101.
It additionally held that claims 12

– 22 cover transitory signals and are therefore not directed to statutory subject matter under § 101.

TT appeals from the Board’s decision . We have juri sdiction under 28 U.S.C. § 1295(a)(4)(A).TRADING TECHNOLOGIES INTL v. IBG LLC 5

D ISCUSSION

I. CBM Eligibility

Pursuant to § 18(a)(1)(E) of the AIA, the Board mayonly institute CBM review for a patent that is a CBM patent. A CBM patent is “a patent that claims a method or corresponding app aratus for performing data processing or other operations used in the practice, administration, or management of a financial product or service, except thatthe term does not include patents for technological inventions .” Id. § 18(d)(1) (emphasis added). Pursuant to its authority under § 18(d)(2), the Patent and Trademark Office promulgated 37 C.F.R. § 42.301(b), which requires the Board to consider the following on a case

- by

- case basis indetermining whether a patent is for a technological invention: “wh ether the claimed subject matter as a whole recites a technological feature that is novel and unobviousover the prior art” and whether it “solves a technical problem using a technical solution.” We review the Board’s reasoning “under the arbitrary and ca pricious standard and
its factual determinations under the substantial evidence
standard.” SightSound Techs., LLC v. Apple Inc. , 809 F.3d1307, 1315 (Fed. Cir. 2015). The only issue of CBM eligibility that TT contests is whether its patents are for techn ological inventions.

The Board relied on claim 1 to determine that the ’556 patent is directed to a covered business method patent. Itdetermined that claim 1 does not recite a technological feature that is novel and unobvious over the prior art because

t he patent indicates that the claimed technological features are known technologies. It determined that claim 1 does not recite a technical solution to a technical problem
because the problem disclosed in the patent is that traders
need additional informat ion on a trading screen to effectively analyze the market, which is business problem, not
a technical one.TRADING TECHNOLOGIES INTL v. IBG LLC 6

TT argues the Board erred in applying the first consideration of § 42.301(b) based on our decision in Versata Development 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 onehaving a technological feature that solves a technical problem u sing a technical solution. Appellant Br. 28

– 29 (citing 793 F.3d at 1326). We need not decide this issue becausewe agree with the Board that the claims do not solve a technical problem using a technical solution. See Apple, Inc. v. Ameranth, Inc. , 842 F .3d 1229, 1240 (Fed. Cir. 2016) (“We need not address this argument regarding whether the first prong of 37 C.F.R. § 42.301(b) was met, as we affirmthe Board’s determination on the second prong of the regulation .

. . .”).

The problem that the patent seeks to solve is providing “highly relevant information ” that is “not normally provided in an electronic exchange’s data feed nor displayed by a trading screen” to a trader. ’556 patent at 2:18

– 37

. The specification does not identify any technical prob lems associated with obtaining or displaying this information. Rather, it states that traders “might make quick mental calculations, use charting software, or look to other sourcesto provide additional insight beyond what is normally provided.” Id. at 2 :22

– 25. The use of multiple sources of information made it difficult for traders to quickly process
information to make informed trades. Id. at 2:26

– 30.

Th e “highly relevant information ” in the context of theclaims is the P&L associated with making a trade at a specific price. T he specification acknowledges that a skilled artisan would recognize the numerous ways to calculate
this information

. Id. at 13:60

– 63. C laim 1 essentially
take s the prior art trading screen of Figure 2 , calculatesP&L for “a range of price levels,” and displays the P&L values along an axis. Compare id. at Fig. 2 with id. at Fig. 9. TT argues this improves the usability, visualization, andTRADING TECHNOLOGIES INTL v. IBG LLC 7

efficiency of prior a rt trading screens. But m erely providing a trader with new or different information in an existing trading screen is not a technical solution to a technical problem. Instead, it focuse s on improving the trader, not the functioning of the computer. We co nclude the Board’s reasoning that the ’556 patent is a CBM patent was not arbitrary and capricious

.
II. P ATENT E LIGIBILITY

We review the Board’s legal conclusions de novo and its factual findings for substantial evidence. Ameranth , 842
F.3d at 1236. “El igibility under 35 U.S.C. § 101 is a question of law, based on underlying facts.” SAP Am., Inc. v. InvestPic, LLC , 898 F.3d 1161, 1163 (Fed. Cir. 2018).

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matt er, 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 Ba nk Int’l , 573 U.S. 208, 216 (2014) (quoting Assoc. for Molecular Pathology v. Myriad Genetics, Inc. , 569U.S. 576, 589 (2013)). All inventions at some level “embody, use, reflect, rest upon, or apply” these concepts, but if an invention applies these conc epts 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 app lications of those concepts. ” Id

. “First, we determine
whether the claims at issue are directed to ” a patent

- ineligible concept

. Id

. If so, “ we consider the elements of each
claim both indi vidually and ‘as an ordered combination’ to determine w hether the additional elements ‘ transform the
nature of the claim ’ into a patent

- eligible application .” Id

. (quoting Mayo Collaborative Servs. v. Prometheus Labs.,
Inc. , 566 U.S. 66, 78

– 79 (2012)).TRADING TECHNOLOGIES INTL v. IBG LLC 8

A

At Alice step one, we must “ determine whether the
claims at i ssue are directed to a patent

- ineligible concept .”
Alice , 573 U.S. at 218. Under this inquiry, we evaluate “thefocus of the claimed advance over the prior art” to determine if the character of the claim as a whole, considered in light of the specificati on, is directed to excluded subject

matter. Intellectual Ventures I LLC v. Capital One Fin. Corp. , 850 F.3d 1332, 1338 (Fed. Cir. 2017) (quoting Affinity Labs of Tex., LLC v. DIRECTV, LLC , 838 F.3d 1253, 1257 (Fed. Cir. 2016)); Enfish, LLC v. Microsoft Co rp. , 822 F.3d 1327, 1335 (Fed. Cir. 2016).

The claims considered in light of the specification make clear that “the focus of the claimed advance over the priorart” is providing a trader with additional financial information to facilitate market trades, an abstract idea. Intellectual Ventures , 850 F.3d at 1338 (internal quotation marks omitted). The specification states that the inventionmay be used “in any electronic trading screen” and identifies the prior art trading screen of Figure 2 as one in whi ch the invention would “work particularly well.” ’556 patent

at 3:8

– 12. The only difference between the trading screen of Figure 2 and the one claimed is that the axis in Figure 2 displays price values, and the claimed axis displays P&L
values. This inc ludes the additional limitations of dependent claims 2 and 3, which are the only dependent claims
that TT mentions on appeal

. See ’132 patent at 10:4

– 17. Information, whether displayed in the form of price values or P&L values, is abstract. SAP , 898 F.3d at 1167

. Likewise, the claimed steps for calculating the P&L values

— “identifying a long or short position taken by a user” and “computing by the computing device a plurality of values” representing “a profit or loss if the long or short position is

c losed at a price level”

— is nothing more than “mere automation of manual processes using generic computers,” which “does not constitute a patentable improvement inTRADING TECHNOLOGIES INTL v. IBG LLC 9

computer technology.” Credit Acceptance Corp. v. Westlake
Servs. , 859 F.3d 1044, 1055 (Fed. Cir. 2017).

TT asserts that the claims are not directed to an abstract idea because they provide a particular graphical user
interface that improves usability, visualization, and efficiency . It argues the claims combine a value axis with values associated with price levels, each value representing P&L if the position is closed at a particular price; a first indicator representing a particular price; and functionality to move the indicator relative to the value axis in response to an updated price. It argu es prior art trading screens
lacked a value axis that showed P&L for a trade. Relying

on Electric Power Group LLC v. Alstom S.A. , 830 F.3d 1350, 1354 (Fed. Cir. 2016), i t argues we have suggested that “identifying a particular tool for presentation” was e nough to confer eligibility. TT’s contentions are unavailing.

The claims are focused on providing information to traders in a way that helps them process information more quickly, ’556 patent at 2:26

– 39, not on improving computers or technology

. The clai ms require displaying P&L values along an axis, displaying an indicator representing market information at a location on the axis, and moving
the indicator to a second location. The “tool for presentation” here, Electric Power , 830 F.3d at 1354, is simply a generic computer. ’556 patent at 14:66

– 15:2 (“Various types of general purpose or specialized computer apparatus or computing device may be used with or perform operations in accordance with the teachings described herein.”).
While the fact that an in vention is run on a generic computer does not, by itself, “doom the claims,” Core Wireless Licensing S.A.R.L. v. LG Elecs., Inc. , 880 F.3d 1356, 1362 (Fed. Cir. 2018), the claims here fail because a rranging information along an axis does not improve the fu nctioning of the computer, make it operate more efficiently, or solve any technological problem. Like Electric Power , the purported advance “is a process of gathering and analyzing information of a specified content, then displaying theTRADING TECHNOLOGIES INTL v. IBG LLC 10

results, and not a ny particular assertedly inventive technology for performing those functions.” 830 F.3d at 1354.
We thus conclude that the claims are directed to an abstract idea.

B

At step two, we “consider the elements of each claim both individually and ‘as an ordere d combination’ to determine whether the additional elements ‘transform the nature of the claim’ into a patent eligible application.” Alice

, 573 U.S. at 218 (quoting Mayo , 566 U.S. at 78

– 79) . Step 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 , 898 F.3d at 1167 (internal quotation
marks omitte d). The abstract idea itself cannot supply theinventive concept, “no matter how groundbreaking the advance.” Id. at 1171.

The elements of the claims , considered individually and as an ordered combination, fail to recite an inventive
concept. The claime d trading screen simply takes the prior art trading screen of Figure 2 and adds P&L values along the axis. ’556 patent at 3:8

– 12, 8:50

– 54. The specification acknowledges that “there are numerous ways to calculate P&L and one of ordinary skill in the art would recognize the many different possibilities.” Id. at 13:61

– 63. Even if no trading screen had previously displayed P&L values, “ a claimed invention ’ s use of the ineligible concept to which itis directed cannot supply the inventive concept that rende rs the invention ‘ significantly more ’ than that ineligible
concept. ” BSG Tech LLC v. Buyseasons, Inc. , 899 F.3d 1281, 1290 (Fed. Cir. 2018)

. We see nothing in the combination of these elements that supply an inventive concept.
We conclude that claims 1

– 22 are ineligible under § 101.TRADING TECHNOLOGIES INTL v. IBG LLC 11

III. Constitutionality of CBM Review

TT argues the Board’s decision should be vacated because CBM review is unconstitutional. In a total of four sentences in its opening brief, TT raises challenges basedon a right to a jury under the Seventh Amendment, separation of powers under Article III, the Due Process Clau se, and the Taking Clause. Such a conclusory assertion with no analysis is insufficient to preserve the issue for appeal. See United States v. Great Am. Ins. Co. of N.Y. , 738 F.3d1320, 1328 (Fed. Cir. 2013) (“It is well established that arguments that a re 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” suffici ent to preserve theissue). We decline to address TT’s constitutional challenges.

C ONCLUSION

We have considered TT’s other arguments and find them unpersuasive. For the foregoing reasons, we conclude that the ’556 patent is CBM eligible and that claims 1

– 22are ineligible. In light of this conclusion, we need not address Petitioners’ separate ground that claims 12

– 22 are
directed to non

- statutory subject matter.

AFFIRMED