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 Nos. CBM2015-
00172, CBM2016-00040.
______________________
Decided: April 30, 2019
______________________
JENNIFER KURCZ, Baker & Hostetler LLP, Chicago, IL,
argued for appellant. Also represented by LEIF R.
SIGMOND, JR., MICHAEL DAVID GANNON; ALAINA J.
LAKAWICZ, Philadelphia, PA; COLE BRADLEY RICHTER,
McDonnell, Boehnen, Hulbert & Berghoff, LLP, Chicago,
IL; STEVEN BORSAND, JAY QUENTIN KNOBLOCH, Trading
Technologies International, Inc., Chicago, IL.
2 TRADING TECHNOLOGIES INTL v. IBG LLC
RICHARD M. BEMBEN, Sterne Kessler Goldstein & Fox,
PLLC, Washington, DC, argued for appellees. Also repre-
sented by ROBERT EVAN SOKOHL; MICHAEL T. ROSATO, Wil-
son, Sonsini, 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, CLEVENGER, and WALLACH, Circuit Judges.
MOORE, Circuit Judge.
Trading Technologies International, Inc., (“TT”) ap-
peals a decision of the Patent Trial and Appeal Board hold-
ing claims 1–22 of U.S. Patent No. 7,783,556 ineligible
under 35 U.S.C. § 101. Because we agree that the patent
is a covered business method patent and the claims are in-
eligible, we affirm.
BACKGROUND
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 dis-
closed 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 specifica-
tion, “traders are often interested in analyzing other pieces
of highly relevant information that are not normally pro-
vided in an electronic exchange’s data feed nor displayed
by a trading screen.” Id. at 2:18–22. Traders may “make
quick mental calculations, use charting software, or look to
TRADING 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 “generating 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 ask
price for a tradeable object from an elec-
tronic exchange;
identifying by the computing device a long
or short position taken by a user with re-
spect 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 plu-
rality 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 level
among a range of price levels for the trade-
able object;
displaying via the computing device the
plurality of values along a value axis;
4 TRADING TECHNOLOGIES INTL v. IBG LLC
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 a
particular price based on any of the follow-
ing prices: current best bid, current best
ask, and a last traded price, and wherein
the first value represents a profit or loss in-
curred by the user if the long or short posi-
tion is closed at the particular price; and
moving the first indicator relative to the
value axis to a second location correspond-
ing 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 Cov-
ered 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 sig-
nals and are therefore not directed to statutory subject
matter under § 101.
TT appeals from the Board’s decision. We have juris-
diction under 28 U.S.C. § 1295(a)(4)(A).
TRADING TECHNOLOGIES INTL v. IBG LLC 5
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
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 inven-
tion: “whether the claimed subject matter as a whole re-
cites a technological feature that is novel and unobvious
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 eligi-
bility that TT contests is whether its patents are for tech-
nological inventions.
The Board relied on claim 1 to determine that the ’556
patent is directed to a covered business method patent. It
determined that claim 1 does not recite a technological fea-
ture that is novel and unobvious over the prior art because
the patent indicates that the claimed technological fea-
tures 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 information on a trading screen to effec-
tively analyze the market, which is business problem, not
a technical one.
6 TRADING TECHNOLOGIES INTL v. IBG LLC
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. Appellant Br. 28–29 (citing
793 F.3d at 1326). We need not decide this issue because
we agree with the Board that the claims do not solve a tech-
nical 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 affirm
the Board’s determination on the second prong of the regu-
lation . . . .”).
The problem that the patent seeks to solve is providing
“highly relevant information” that is “not normally pro-
vided 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 problems
associated with obtaining or displaying this information.
Rather, it states that traders “might make quick mental
calculations, use charting software, or look to other sources
to provide additional insight beyond what is normally pro-
vided.” Id. at 2:22–25. The use of multiple sources of in-
formation made it difficult for traders to quickly process
information to make informed trades. Id. at 2:26–30.
The “highly relevant information” in the context of the
claims is the P&L associated with making a trade at a spe-
cific price. The specification acknowledges that a skilled
artisan would recognize the numerous ways to calculate
this information. Id. at 13:60–63. Claim 1 essentially
takes the prior art trading screen of Figure 2, calculates
P&L for “a range of price levels,” and displays the P&L val-
ues along an axis. Compare id. at Fig. 2 with id. at Fig. 9.
TT argues this improves the usability, visualization, and
TRADING TECHNOLOGIES INTL v. IBG LLC 7
efficiency of prior art trading screens. But merely provid-
ing a trader with new or different information in an exist-
ing trading screen is not a technical solution to a technical
problem. Instead, it focuses on improving the trader, not
the functioning of the computer. We conclude the Board’s
reasoning that the ’556 patent is a CBM patent 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. “Eligibility under 35 U.S.C. § 101 is a ques-
tion 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 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-ineli-
gible concept. 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 the claim’ into a patent-eligible application.” Id.
(quoting Mayo Collaborative Servs. v. Prometheus Labs.,
Inc., 566 U.S. 66, 78–79 (2012)).
8 TRADING TECHNOLOGIES INTL v. IBG LLC
A
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)); Enfish, LLC v. Microsoft Corp., 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 prior
art” is providing a trader with additional financial infor-
mation to facilitate market trades, an abstract idea. Intel-
lectual Ventures, 850 F.3d at 1338 (internal quotation
marks omitted). The specification states that the invention
may be used “in any electronic trading screen” and identi-
fies the prior art trading screen of Figure 2 as one in which
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 includes the additional limitations of depend-
ent 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. Like-
wise, 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
closed at a price level”—is nothing more than “mere auto-
mation of manual processes using generic computers,”
which “does not constitute a patentable improvement in
TRADING 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 ab-
stract idea because they provide a particular graphical user
interface that improves usability, visualization, and effi-
ciency. It argues the claims combine a value axis with val-
ues 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 argues 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), it argues we have suggested that
“identifying a particular tool for presentation” was enough
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 comput-
ers or technology. The claims require displaying P&L val-
ues 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 presenta-
tion” here, Electric Power, 830 F.3d at 1354, is simply a ge-
neric 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 invention is run on a generic com-
puter 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 arranging in-
formation along an axis does not improve the functioning
of the computer, make it operate more efficiently, or solve
any technological problem. Like Electric Power, the pur-
ported advance “is a process of gathering and analyzing in-
formation of a specified content, then displaying the
10 TRADING TECHNOLOGIES INTL v. IBG LLC
results, and not any particular assertedly inventive tech-
nology for performing those functions.” 830 F.3d at 1354.
We thus conclude that the claims are directed to an ab-
stract idea.
B
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
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 omitted). The abstract idea itself cannot supply the
inventive concept, “no matter how groundbreaking the ad-
vance.” Id. at 1171.
The elements of the claims, considered individually
and as an ordered combination, fail to recite an inventive
concept. The claimed 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 it
is directed cannot supply the inventive concept that ren-
ders 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 combi-
nation 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 be-
cause CBM review is unconstitutional. In a total of four
sentences in its opening brief, TT raises challenges based
on a right to a jury under the Seventh Amendment, sepa-
ration of powers under Article III, the Due Process Clause,
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.3d
1320, 1328 (Fed. Cir. 2013) (“It is well established that ar-
guments 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 chal-
lenges.
CONCLUSION
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 1–22
are ineligible. In light of this conclusion, we need not ad-
dress Petitioners’ separate ground that claims 12–22 are
directed to non-statutory subject matter.
AFFIRMED