I appreciate that you don't think the patent is valid, and I'm not necessarily trying to argue that it is, I'm just trying to explain why it was accepted by the USPTO and how the Courts interpret it.
I realise that it was accepted but I donât think that in itself, or the other arguments put forward, explains âwhyâ.
I'm not sure anyone really knows why. There seem to be many grounds for exclusion. As you state, youâre not trying to argue that it is valid. But reasons for its validity,
that simultaneously do not make it impossible to comply, would give us the âwhyâ. So far I have yet to hear any.
This wouldnât be the first time that the patent office permitted a patent that restricted something that should have been considered impossible to avoid infringement and/or which should have been considered public domain.
I see no difference between this and the first person who created a calendar GUI in grid format, wrote a process to one-click a date within it allowing the entry of a reminder and who then obtained a patent on one-click entry of reminders and alarms directly from a GUI calendar grid.
Saying that
âit seems obvious to everyone today, but it likely wasn't at the time of the inventionâ simply isnât true.
It may not be obvious to the people who have had little to do with exchanges and MMs.
The claim of 'novelty' isn't true about the calendar and it isnât true about a vertical price axis straddled with Bids/Asks. Specialists on the NYSE Stock have been writing in the ever-changing book of Bids and Asks against a static price scale for years â just as people have been manually writing in reminders on physical calendars printed in a grid format.
What wasn't obvious is that you could succeed in getting a patent on something that's been done for years - albeit on a different platform.
Just because someone takes a process that previously involved real, physical objects updated with a written form of data entry â and then converts that to a set of digital images and digital entry â is not enough to qualify it as a ânovelâ idea or invention. First to put it on a new platform? Yes. Novel idea/invention? Hardly.
Otherwise every day-today, but previously non-computerized process, that is replicated into a GUI format could be considered ânovelâ. e.g. patents on word processors don't prevent the address information from being static on an envelope just because the first developer wrote the software to format envelopes on a screen when 'it wasn't obvious to some'.
TT's patent does not pertain to a sequence of numbers per se
That isnât entirely true. It does pertain to a sequence of numbers when that sequence is in the form of a common price axis. I acknowledge that the patent then centers around how price scales are displayed but it is the displaying of THOSE price scales (and no other) which is the issue. The patent demands that if it constantly moves, thatâs OK. If not, thatâs an infringement â so itâs hardly irrelevant. The point being that displaying any scale, redisplaying it (or not redisplaying it), is not novel â just as it isnât with the GUI calendar grid.
But the more relevant issue for me has always been that NOT infringing this patent is impossible if you want to display current price and the book size at those prices. That's because the patent does not permit the price axis to be in a static state, at
any time, for
any period of time.
Your proposed solution:
To not 'violate' that is easy, just don't have dynamic bid and ask prices on a static price ladder
Not only is that NOT easy, itâs either impossible - or grounds for patent exclusion because it would restrict the
âStandard arrangements of facts, such as alphabetical or numerical order, which are in the common domainâ.
i.e.
1. If you require the removal of the Bid and Ask entirely in order to comply with the patent, then youâll prevent the âstandard arangement of public domain factsâ being available â which is grounds for exclusion.
2. If you permit that price related data of public domain facts, then it is
impossible for the price axis to
never be static. As you rightly pointed out in a prior post, even during auto-recentering, for the split second between refreshes, the price axis is static. Even with auto-centering, at the times when there are no trades occurring, what then?
but the Courts interpreted the terms more narrowly and (so far) have found them to be valid.
I don't know which, more narrow, Court interpretation found to be valid youâre referring to but the 2007 claim on CQGâs site ends with the Judge denying TTâs motion to reconsider. The Court only granted reconsideration of its construction of âpluralityâ which TT tried to argue also included âoneâ Bid or âoneâ Ask. However, upon reconsideration, the Court continued to construe âpluralityâ as âmore than one Bid and more than one Askâ.
The rest of the claim pertaining to TTâs part-time infringement argument was rejected, stating that:
âPlaintiffâs âcomprisingâ argument, however fails. Unlike many cases cited by plaintiff, its patentsâ claim include a limitation of a static or non-moving condition. Any movement takes a product or process outside the scope of plaintiffâs claim.â
and
âWhere however, the claim limitation itself â here, a static condition â requires permanency, any movement (outside of manual re-centering or re-positioning) negates one of the specified claim limitations. Therefore, introduction of such movement takes an accused device out of the protection of the plaintiffâs patents.â
I donât think the patent relating to the âstaticâ issue should have been allowed in the first place but the result of the 2007 claim and the recent enforced change to TWSâ Booktrader makes me think that TT may have thrown in the towel regarding the static price axis issue and is now pursuing the one-click trading element of its patent.
On that subject:
In this case, the 'single action' must be interpreted in light of the specification, it isn't arbitrarily defined by anyone reading just the claim. If the specification defines a single action as a single click of a mouse button (or equivalent)
I agree. Without knowing the full specification of the patent we canât know if the definition of âsingle actionâ is defined more broadly. However, just from the section(s) of the patent reproduced in the claim, there is nothing at all to suggest a âsingle action or equivalentâ definition exists.
Also, the same reproduction of the patent describes the single action as 'sending the trade order to the electronic exchange'. These orders are not sent to the electronic exchange as a result of a single mouse-click (or equivalent). They are sent to the Server of a Brokerage firm or FCM (unless you have direct access using something like a CME provided Globex terminal).
That intermediary first processes the incoming message for Identity, Margin and Risk Control etc. and then repackages the message into Exchange specified record format.
It is the Broker or FCM who actually submits the order to the electronic exchange - not the trader or his DOM. This is also not a single action (or equivalent) of an input device.
