By Dennis Crouch
As I write about this case, I should first note Trading Technologies (TT) is a former client of mine while I was in practice at the MBHB firm (2001-2007). I was the person who actually signed the complaint against CQG noted below. TT gave me permission to write on the case, but did not review this post.
TT makes and sells software systems used by stock-market-exchange traders. TT’s U.S. Patent No. 6,766,304 covers a graphical user interface (GUI) tool that served as the launching point for the company’s software and its design helps traders trade more quickly and more accurately – features demanded by folks in this hyper-industry. The speed and accuracy improvements come from changes in how the software displays market price changes and how it responds to various user actions (usually ‘clicks’). The patent has been asserted against a number of competitors and has been repeatedly been found valid (or not invalid) on various grounds, including patent eligibility. That seemingly ended with the PTAB decision to grant a petition for Covered Business Method (CBM/PGR) Review of the ‘304 patent. (CBM2015-00161).
TT filed an emergency mandamus action asking the Federal Circuit to reject the institution decision as overstepping the limits on CBM review proceedings. In response, the court provided a one paragraph denial:
Trading Technologies now seeks a writ of mandamus directing the Board to vacate its institution decision and terminate proceedings. Having considered the papers, we deny the petition without prejudice to Trading Technologies raising its arguments on appeal after the Board issues its final written decision. See Versata Dev. Group, Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323 (Fed. Cir. 2015) (holding that this court has authority to address whether patent is a covered business method patent on appeal after issuance of final written decision).
Although it is not entirely clear, the point here appears to be that the Federal Circuit claims no authority to address whether a patent is a covered business method patent until a final written decision is issued. This decision here by Judge Moore should likely be linked to the recently decided Shaw Industries case as well.
Under the statute, “the term ‘covered business method patent’ means 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 inventions.” AIA Section 18. TT has argued that its GUI tool is neither a “data processing method” or “other operation” as designated by the statute – and that a district court had previously held that the patent claims a specific technological GUI tool. See Trading Techs. Int’l v. CQG, Inc., No. 05-cv- 4811, 2015 WL 774655 (N.D. Ill. Feb. 24, 2015).