• TD Ameritrade Holding Corp. / TD Ameritrade, Inc. et al. v. Trading Technologies International, Inc.Rehearing denied
  PTAB · Feb 2, 2015 · CBM2014-00133 · APJ Philip J Hoffmann · CBM · Rehearing

  The Board denied both rehearing requests, leaving in place institution on claims 1–28 under § 101 and denial of institution under § 103.

  RulingsRehearing decision

  • RehearingRehearing, deniedDenied

    “decision for an abuse of discretion. See 37 C.F.R. § 42.71(c). An abuse of discretion may be determined if a decision is based on an erroneous interpretation of law, if a factual finding is not supported by substantial evidence, or if the decision represents an unreasonable judgment in weighing relevant factors. See Arnold Partnership v. Dudas, 362 F.3d 1338, 1340 (Fed. Cir. 2004). For the reasons that follow, Petitioner does not show that the Board abused its discretion.” slip op. at 2

  • PTAB / AIA Trials › Institution threshold (reasonable likelihood / more likely than not)InstitutedInstituted

    “Ameritrade Online Holdings Corp. (collectively, “Petitioner”) filed a Petition (Paper 1, “Pet.”) on May 19, 2014, which requested review under the transitional program for covered business method patents of U.S. Patent No. 7,676,411 B2 (Ex. 1001, “the ’411 patent”). Trading Technologies International, Inc. (“Patent Owner”) filed a Preliminary Response (Paper 18, “Prelim. Resp.”) on September 3, 2014. The Board instituted covered business method patent review of claims 1–28 of the ’411 patent under 35 U.S.C. § 101, and denied institution of any claims under 35 U.S.C. § 103. Paper 19 (“Decision”). Petitioner and Patent Owner each filed a Request for Rehearing asking that the Board reconsider its Decision – Petitioner requesting that we institute based on grounds 2 and 3 of the Petition because claims 1–28 are obvious based on Silverman, Gutterman, and Togher with or without Paal (Paper 21, “Petitioner’s Req. Reh’g”), and Patent Owner requesting that we deny institution because the ’411 patent does not qualify for covered business method patent review (Paper 22, “Patent Owner’s Req. Reh’g”).” slip op. at 2

  • Obviousness (§103) › Motivation to combine / reasonable expectation of successNot reached

    “characterizing Togher’s disclosure, for the following reasons we find that Petitioner relied on Silverman and Gutterman to render obvious claim 1’s limitation “selecting a particular graphical area in the order entry region through a single action of the user input device to . . . set a price for the trade order and send the trade order . . . to the electronic exchange,” and relied on Togher to disclose the claim limitation “the trade order having a default quantity.” Thus, Petitioner’s argument that Togher discloses “a single action of the user input device [] both set[ting] a price for the trade order and send[ing] the trade order having a default quantity” is not timely raised, and will not be a basis for instituting covered business method patent review.” slip op. at 3

  • BurdenDecided for patent owner

    “information in a certain arrangement on the GUI, as well as setting order parameters and sending the order to the exchange with the GUI. Id. Thus, inasmuch as claim 1 recites only known hardware, Patent Owner does not persuade us that claim 1 recites a novel GUI tool.” slip op. at 7

  § 103 obviousnessDiscretionary denial
  Patents in suitUS 7,676,411

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