Trading Technologies Asks Supreme Court to Restore Congress’ Purpose in Creating the Patent Act

“While one line of Federal Circuit decisions holds computer-implemented inventions to be ineligible if they do not make hardware-like improvements to computers’ basic functions, another line holds the opposite…. The post-Alice chaos has resulted in a patent system that now actively undermines the progress of science and useful arts.”

Trading Technologies International, Inc. (TT) has filed a petition for certiorari with the U.S. Supreme Court asking it to clarify U.S. patent eligibility law, including whether the Court should overrule its “abstract idea” precedents. The petition relates to the Federal Circuit’s April 2019 decision siding with the Patent Trial and Appeal Board (PTAB) that certain claims of TT’s patents for graphical user interfaces (GUI) for electronic trading were eligible for covered business method (CBM) review and also patent ineligible. IPWatchdog has written much about this and related Trading Technologies cases, most recently here and here.

Though earlier Federal Circuit panels had found other TT patents not eligible for CBM, as the court found they were directed to technological inventions, Judge Moore said in her April opinion that the patents at issue here—numbers 7,533,056, 7,212,999, and 7,904,374—”relate to the practice of a financial product, not a technological invention,” and that “the specification makes clear that the invention simply displays information that allows a trader to process information more quickly.”

Highlighting a Conflicted Court

Trading Technologies is asking the Supreme Court to consider the following two questions:

Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.
Whether the Court should overrule its precedents recognizing the “abstract idea” exception to patent eligibility under the Patent Act of 1952.

The High Court has notoriously avoided taking Section 101 cases in recent years, but TT argues that now is the time to resolve the intra-circuit split that exists. The petition notes:

While one line of Federal Circuit decisions holds computer-implemented inventions to be ineligible if they do not make hardware-like improvements to computers’ basic functions, another line holds the opposite. Several decisions have even upheld patent protection for interactive graphical interfaces, in plain and open conflict with the decision below.

Namely, Trading Technologies compares the line of cases beginning with Enfish, LLC v. Microsoft Corp., which has focused on the distinction between claims that “purport to improve the functioning of the computer itself” and those that are directed to the mere use of a computer to provide functionality to users, with a conflicting line of cases, such as Data Engine Technologies LLC v. Google LLC, which the petition says “correctly recognizes that the functionality provided to users by computer-implemented inventions provides a basis for patent eligibility, irrespective of whether those inventions improve the computer’s basic functions,” TT wrote in its petition.

Additionally, the Federal Circuit case law interpreting the term “abstract idea” is what Federal Circuit Judge Plager has described as “a ‘definitional morass’ that ‘renders it near impossible to know with any certainty whether the invention is or is not patent eligible.’” In addition to Plager, former Federal Circuit Judge Paul Michel and Judge Richard Linn have lamented the impossibility of the abstract idea concept and the state of patent eligibility law today. Citing two separate IPWatchdog articles, TT’s petition recounts Judge Michel’s statements in recent years alternately referring to patent eligibility jurisprudence as being in a state of “chaos” that is “devastating American business” and observing that “with ’22 years on the Federal Circuit and nine years since dealing with patent cases,’ ‘I cannot predict in a given case whether eligibility will be found or not found.’” TT further noted that in recent cases like Aatrix Software, Inc. v. Green Shades Software, Inc., the current Federal Circuit judges have begged for guidance. In Aatrix, Lourie said, “the law needs clarification by higher authority” than the Federal Circuit.

A Plea to Clean Up the Mess

TT’s brief concludes with a warning to the High Court about the effects of all this uncertainty on U.S. innovation. Since “computers are the steel of the Information Age,” as TT states earlier in its brief, the Federal Circuit’s conflicting jurisprudence threatens the United States’ “’long-held position as the world leader in promoting and securing new technological innovation,’” says the brief, citing a paper by Professors Kevin Madigan and Adam Mossoff. TT Also cites Government Accountability Office statistics showing that “over half of the 4,700 post-grant challenges filed between 2012 and 2016 targeted software patents, and a majority of patent cases in the courts involve software patents,” as well as sources that found that 90% of patents reviewed by the Federal Circuit under section 101 after Alice v. CLS Bank have been invalidated. The brief concludes:

The post-Alice chaos concerning patent eligibility has chased off investment in technological innovation and resulted in a patent system that now actively undermines the progress of science and useful arts. This Court’s intervention is necessary to restore Congress’s design and purpose in the Patent Act of fostering invention.

Steve Borsand, EVP, Intellectual Property at Trading Technologies, told IPWatchdog that the petition is different from other post-Alice petitions in its approach, and that he believes it presents a “strong argument” that “the judge-made [abstract ideas] exception conflicts with the Patent Act…. A decision recognizing as much would clean up what has been a very messy area of the law in recent years. We’re hopeful that the Court will take the case to answer that question once and for all.”

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Join the Discussion

27 comments so far.

Anon
September 25, 2019 07:22 am
Eric,

My replies have been with minimum snark, as I was more than happy to agree to disagree, but Curious simply has no place to tell me how to address those who purposefully spread anti-patent propaganda.

TOO many people suffer the sin of silence in the face of such propaganda.

Sure, this blog rarely sees that type of blight (due in part to much better editorial controls which give short leash to purposeful obfuscation), but other blogs let the unhealthy blight run amuck, and being silent in those forums only fosters others with outlandish anti-patent views.

Further, Curious is simply wrong in the viewpoint that substantive points are diminished when Smack is also employed. Any such diminution is a personal choice (and to point, is the personal choice of Curious), and reflects a less intelligent option than basing a reaction on content. He is of course free to skip over any Smack that he does not like (as is anyone), but the absence of Smack, the absence of any pushback, IS a problem in dealing with anti-patentists.
Eric
September 24, 2019 02:57 pm
‘Anon’, ‘Curious’ —

You two, each often bring forth points or references that are useful valuable in the ongoing debate over patent issues in the U.S. and abroad, and obviously well versed in years of study about these matters. I often enjoy worthwhile comments by one or the another, found frequently on this blog, over some years.

Yet, when you two get into your differences, all that value fades away as a personal invective usually ensues, taking up large amounts of energy, space and thought not actually helpful to the overall debate.

At a certain point, the proportion of personal back-and-forth comments containing *nothing of import* about a given detail or issue of the overall topic, loses its relevance to same, and degrades the discussion at large. The longer this goes on in any one article, the more oxygen gets sucked out of the room (so to speak).

Can I please ask you both and each, to consider reducing this tendency? Perhaps, it may be better instead: to engage such back-and-forth over a more private means of communication, and play time-out from the blog here; for the sake of staying on point of the essential topics at hand.

I thank you each and both in advance, for your genuine consideration of this request.
Anon
September 23, 2019 09:38 pm
Curious,

I heard you the first time that you presented your logic that everyone is like you and my notion is nothing more than a rabbit hole.

You were wrong then.

You are still wrong.

This has nothing at all to do with “putting words in your mouth.” This has everything to do with the “logic” of the words that you are already using.

I “get” that you do not like my methods. Get over yourself.
Curious
September 23, 2019 07:49 pm
Another error of yours is thinking (somehow) that 0.14 seconds is some type of onerous ‘investment’ of time to “follow rabbit holes like [you] do.”
Let’s unpack that for a second (or two or three). Did it take you .14 seconds to open up a tab, type in the correct search term, navigate to the proper page, identify the proper blurb, and then read it to find the meaning? I didn’t think so.

When I first did my search, the correct link was the 4th one. If I do a search on Bing, it comes up as the 5th link.

then anyone with even a minimum amount of curiosity can EASILY google and find the various explications.
What a person can do and what a person is willing to do are two different things.
You fail to appreciate that those doing the inquiry don’t know how long it will take them before the inquiry is actually completed. The thing about going down rabbit holes is that sometimes it takes a couple minutes, sometimes it takes a couple of hours. One doesn’t know until one performs the task. As a general matter, rabbit holes are not inviting to most because most don’t have the time to kill to find out deep it goes.

Regardless, you lose EVERYBODY who isn’t interested in going down the rabbit hole. Do you research every obscure reference that you come upon? I didn’t think so.

the use of catch phrases is a much better way to leverage the maximization efforts
I have no problem using catch phrases that are well-known. However, you use the phrase (among others) as if it is part of the general lexicon. It is not. Your catch phrase is obscure, and nothing you write changes that FACT.

“What? there has been a counter point already presented to the millionth time that I have posted the same propaganda?“
A better solution than catch phrases is a document full of saved arguments that fully and complete dubunks whatever propaganda they are selling. I have such a document when I respond to examiners who misstate the law the same way time and time again. Cut and paste is a wonderful tool. You don’t need to invest 5 or 10 minutes writing something that you’ve written before. When you spend the effort to debunk the propaganda, save it and recycle it. You can refine it as you go along. You can tweak it as needed.

there is a whole spectrum out there, and reaching you, or the likes of you, is NOT what the blogosphere and forums like this one, and yes, like Patently-O are about
What is it about for you then? It seems to me you gain more pleasure in scoring points against the various parties you engage with then you are in helping to advance the cause.

simply do not recognize that their is a full spectrum out there.
What is the full spectrum I’m missing? What class of readers are reached by your personal attacks against other posters?

Those explications multiply provided the first shear of how the Supreme Court COULD sua sponte reverse itself. Those explications multiply provided the second shear of why the Supreme Court SHOULD sua sponte reverse itself
Worth an article to take Kavanaugh’s scissors out of obscurity? Bottom line is obscure references remain in obscurity, which is what your “meme” has done for the last 8 months or so. It isn’t used. It isn’t discussed.

But I do (and will continue to) take issue when you think that your way is the only way.
Again, putting words into my mouth that I didn’t say. Why do you do that? Is it because personal attacks are second nature in your writing? I never said my way is the only way. However, your way (when you are engaged in personal attacks) is off-putting. Your way (when you overuse your obscure references) don’t reach nearly the number of people that they could.
Anon
September 23, 2019 08:18 am
Curious,

You continue to err and seem to think more is needed from me. Your error here is in the phrase “remain obscure without frequent explications”

When I first introduced the concept of “Kavanaugh Scissors” there WERE frequent explications (and not just on this blog) – as would be expected and as would satisfy the basis of your statement. Once that was done, then anyone with even a minimum amount of curiosity can EASILY google and find the various explications. As I noted above, it took me 0.14 seconds (and this has nothing to do with me knowing what I was looking for, which was a false attribute you made in response).

Those explications multiply provided the nature of the two shears that provided the cutting edges — both reflected in the words of the new Supreme Court Justice Kavanaugh. Those explications multiply provided the first shear of how the Supreme Court COULD sua sponte reverse itself. Those explications multiply provided the second shear of why the Supreme Court SHOULD sua sponte reverse itself.

Another error of yours is thinking (somehow) that 0.14 seconds is some type of onerous ‘investment’ of time to “follow rabbit holes like [you] do.”

Yet another error is in thinking that “maximizing the knowledge one imparts” requires playing the Br’er Rabbit game. That is simply wrong and feeds the distortionists and the games that they would play (with the anti-patentists actually believing their own words of: “What? there has been a counter point already presented to the millionth time that I have posted the same propaganda?“). Quite in fact, the use of catch phrases is a much better way to leverage the maximization efforts (even though such does not appeal to you personally — again, there is a whole spectrum out there, and reaching you, or the likes of you, is NOT what the blogosphere and forums like this one, and yes, like Patently-O are about).

Bottom line is that you still continue to judge based solely on your own perspective (expressly opposite of what you claim), and simply do not recognize that their is a full spectrum out there. I do not begrudge your conversation pieces (on actual patent law topics), as that is your aim at a part of that spectrum. But I do (and will continue to) take issue when you think that your way is the only way.
Curious
September 21, 2019 04:00 pm
I do NOT play the Br’er Rabbit “you must unfold a full explication every time a reference is made” game.
And that explains why your “phrase [that] was crafted with care” has received next to zero usage in the at least seven months since its creation. Obscure references remain obscure without frequent explications.

As such, when you wrote “did NOT see the ‘Kavanaugh Scissors’ meme that would provide the Court with the substantiated rationale for cutting through the Gordian Knot of its own creation” I would imagine that there might be a handful of people in the whole wide world that knew what you were talking about. To make a “meme” you need to have it spread. To have it spread, people need to know what it means.

ALL search for knowledge is nothing but a scavenger hunt.
No. It is not a scavenger hunt for me to hop onto this site to discover things about patent law. There are plenty of places I know to go when I want to find information about something I’m look for.

Mind you, I engage in scavenger hunts. However, I have a curiosity about things that sets me apart from most. Importantly, I don’t make the common mistake of imputing my abilities (or characteristics) to others, and I don’t expect them to act like I would act. In this instance, I recognize that many professionals don’t have the kind of time to follow rabbit holes like I do. As such, if one wants to maximize the knowledge one imparts, one need to recognize that spoon-feeding (i.e., your “full explication”) is oftentimes necessary.
Anon
September 21, 2019 10:52 am
Curious,

Under your view then, ALL search for knowledge is nothing but a scavenger hunt.

I will continue to state that such a characterization is simply not correct, and any effort to debunk it cannot be a misrepresentation.

I do NOT play the Br’er Rabbit “you must unfold a full explication every time a reference is made” game.
Curious
September 21, 2019 12:00 am
Is it really a “misrepresentation” to debunk your “it takes a scavenger hunt” comment?
The person who creates the scavenger hunt knows where the objects can be found. Those that participate in the hunt itself do not. Many people have no interest in engaging in a scavenger hunt — not knowing if it’ll take them .14 seconds or 14 minutes to find what they might be looking for. The likelihood of the search being undertaken is less so when they don’t even know if what they might find is of any value.
Anon
September 20, 2019 05:53 pm
Curious,

Is it really a “misrepresentation” to debunk your “it takes a scavenger hunt” comment?

I think not.
Curious
September 20, 2019 01:26 pm
You seem to be complaining that you had to employ your curiosity…
Why do misrepresent what I wrote?

By the way, my search to find it took 0.14 seconds. Perhaps you are not as curious as you believe yourself to be.
It isn’t me that you should be worried about. To repeat myself, clear writing does not require a scavenger hunt — the result of which leads to little.

Oddly as well, the “path” you offer would require me to “out” myself
From my recollection, Gene has provided an opportunity for a writer to post an article anonymously. A list of those articles can be found here:
https://ipwatchdog.com/author/pseudonym/
Considering you have commented in several of those arguments, I assume you are aware of that feature on this blog. As such, it would appear to be quite disingenuous of you to accuse me of requiring you to out yourself when you know that outing yourself is, in fact, NOT a requirement to be published.

follow through on your desire that you would wish to impart to me
My wish to impart upon you is to use terminology that helps the reader better understand the issues. That’s a you problem — not a me problem.
Anon
September 20, 2019 10:42 am
Curious,

You seem to be complaining that you had to employ your curiosity…

By the way, my search to find it took 0.14 seconds. Perhaps you are not as curious as you believe yourself to be.

Oddly as well, the “path” you offer would require me to “out” myself — a nonstarter for a variety of reasons. But now that you have found the information, you have my permission to write an actual article using YOUR real name and follow through on your desire that you would wish to impart to me.

What are the chances that you will decline?
concerned
September 20, 2019 10:19 am
The phrase “efficient infringement” has Matt Levy’s article still coming up first on the Edge browser.

I still do not understand how a patent blocks the entire industry from still doing it the old fashioned way prior to the patent (Levy’s premise). If the patented way is too expensive, or not enough bang for the buck, who would use it anyway? Simply business as usual with the old fashioned (cheaper) way. It is a rhetorical question, of course.

I realize that SCOTUS could not prohibit computer software patents or business methods, so the next best thing happened. Put rulings in place, allow those “undefined” rulings to destroy those types of patents while claiming that was not SCOTUS’ intent, then refuse to act on the carnage. Brilliant.

TT’s certiorari is a fair question on a level playing field, yet it will not see the light of day. I certainly would appreciated the clarification so I could either pack it up or keep fighting.

This kind of reasoning was also used in the sub prime mortgage lending: Tell people with no means of financial capability to buy homes, yet that is good for all concerned with the help of a little mis-stated income and inflated appraisals. The patent truth will reveal itself in time: Who knowingly invents in this environment? My application was pre-Alice so I have a minor excuse for my insanity.

Can I hold on long enough until the madness stops?
Curious
September 19, 2019 05:54 pm
realize that the phrase may well serve as an invitation and google to find where they phrase is explicated in detail
It took me several minutes of searching to find it although I knew where to find it. Clear writing does not ask the reader to go on a scavenger hunt.

Regardless, how many people out of a hundred are going to go through that exercise? A handful? Moreover, what are they going to find when they do this search? Law review articles? Other articles that explain the phrase? No. They’ll get two pages of links on Google (which in my long history of using search engines is an indication that I’ve hit upon an obscure phrase). Additionally, as I just searched, the full explanation wasn’t found until I got to the fourth link.

If you want the term “Kavanaugh Scissors” to go viral, write an article on it and get it published. Get other websites to link to it. Do what Matt Levy (formerly of the CCIA, aka the infringer’s alliance) did with the phrase “efficient infringement” — write an article and find a way to have it come up as the top hit on Google (after 3 years, it is now the 3rd link) for that search term.
Ternary
September 19, 2019 05:11 pm
Ha Paul Cole. Like conversing with a disinterested Examiner. “However a newly discovered route by road from Washington to New York with shorter journey time is probably not patent-eligible.” I agree. A newly discovered route by road is not patent eligible. (Actually, the method to discover such a route, probably an alternative in time shorter route due to traffic, with the use of a computer probably is.)

Road and engine are different objects. While a car can drive a road and a car has an engine, a road does not have an engine.

This exchange is a bit tongue-in-cheek. But many of the arguments in patent prosecution really do not supersede this level. And it is soooooo tiresome, especially if one considers what one is getting as a result.
Anon
September 19, 2019 05:06 pm
Curious,

Rather than focus on “obscure,” you may (instead) focus on your moniker and realize that the phrase may well serve as an invitation and google to find where they phrase is explicated in detail.

The other option (to fully explicate the concept every time the situation arises) is neither tenable , nor — in truth — desirable.

The phrase was crafted with care and thought to BE the type of phrase that invites one to find out more. I would also posit that the impact is greater when a searcher DOES spend that de minimus energy and discover for themselves how the term cleverly puts together the problem (a Gordian Knot) and the solution (the Court itself has recently put out their two sharp implements that when pivoted together may provide a quick and complete resolution of the problem that the Court itself created).

I do grant that there are plenty of ways that a spectrum of people MAY choose to pursue, and you won’t find me taking issue with anyone who in good faith pursue any particular ways (rather, my criticism in those cases would be on substantive points).
concerned
September 19, 2019 01:20 pm
Curious @9: FYI — to follow up on a prior conversation, your reference to “Kavanaugh Scissors” is an excellent example of the use of an obscure reference for which very few know the meaning.

A did a genealogy test on Anon’s dna and who knew? Anon is Alexander the Great. Not only in his sword but also in his pen.
Pro Say
September 19, 2019 11:12 am
TT’s petition is superb.

Superb.

If SCOTUS doesn’t grant this abstract idea cert petition (and I don’t believe they will), they won’t grant any abstract cert petition.

Congress. the leaves are beginning to change colors.

Where are you?
anonymous
September 19, 2019 11:00 am
The petition for cert was written well. If SCOTUS does not take this opportunity to revisit and clarify Alice, then there can be no clearer time for Congress to immediately abrogate this horrible line of cases.

Congress, please do your job and fix this 101 mess. Senators Tillis and Coons should give us a clean 101 bill to rally behind NOW. The innovation community cannot wait any longer.
Curious
September 19, 2019 09:25 am
I only gave the petition a quick glance, and did NOT see the “Kavanaugh Scissors” meme that would provide the Court with the substantiated rationale for cutting through the Gordian Knot of its own creation.
FYI — to follow up on a prior conversation, your reference to “Kavanaugh Scissors” is an excellent example of the use of an obscure reference for which very few know the meaning.

That being said, TT presented a strongly-worded section (pages 27-34 of the Petition) as to why the Court should revisit its 101 “abstract ideas” jurisprudence. As part of that, TT noted the extensive commentary (including from the judiciary itself) regarding the “definitional morass” that the Federal Circuit’s case law has become. They also pointed out how the “abstract idea” exceptions are untethered from the Patent Act of 1952.

If I was a betting man, I would wager that the Supreme Court will decline the petition — not that the petition isn’t well-written or well-founded, but that is what the Supreme Court has done ever since Alice. Until I see a change from the Supreme Court, I will assume that a change has not been made.
Concerned
September 19, 2019 04:55 am
We sure do live in interesting times.

SCOTUS and the USPTO have both said the new and useful invention does NOT have to improve the computer itself. Benson, Alice, with SCOTUS and examples 34 and 35 in the 2014 USPTO guidance and practical application in the 2019 guidance.

District courts, which are in the authoritive middle of both of the above named groups, are split on the issue. I bet Night Writer has an interesting take on this split.

Yet my examiner, who is under direct authority of the USPTO, insists my application must improve the computer itself. He goes against the USPTO boss, his boss, and sides with a part of the district court. He completely dodges the practical application aspect. Interesting times indeed.

As to Ternary’s point, how many patents on cars were approved (cruise control, intermittent wipers, anti locking brakes, etc.) yet they did not improve the car’s engine one iota?

We all know what this scenario is about. Software patents and who wants to protect their monopolies at all costs.

Paul Morinville feels one day China may hijack an aircraft carrier using IP that should have been here in the United States. If lawmakers have the possibility of losing the country they preside over, maybe the lobbying money will not look so important.
Paul Cole
September 19, 2019 04:45 am
I really like the engine-implemented analogy.

However a newly discovered route by road from Washington to New York with shorter journey time is probably not patent-eligible.
Paul Cole
September 19, 2019 04:43 am
I really like the engine-implemented analogy.

However a newly discovered route by road from Washington to Now York with shorter journey time is probably not patent-eligible.
Ternary
September 18, 2019 11:17 pm
“Whether computer-implemented inventions that provide useful user functionality but do not improve the basic functions of the computer itself are categorically ineligible for patent protection.”

The issue is as absurd as:

“Whether engine-implemented inventions that provide useful user functionality but do not improve the basic functions of the engine itself are categorically ineligible for patent protection.”

We live in interesting times, that is for sure.
Wendy Hughes
September 18, 2019 10:14 pm
The SCOUTS Government are all in bed with Silicon Valley, small inventors do not have a fighting chance to go up against Goliaths like Google and Apple as they have endless appeals that drain you out as a small start up tech company with no resources to fight, on top of it all laws like 101 112 102 103 are all molded to mute and kill off any type of compensation an inventor deserves from someone intruding on you property rights as a patent holder. The system is beyond repair. start up will be opening up over seas where injunction reliefs are still implemented when you have Apple not will to take a licenses and willfully taking your idea and making billions of dollars off of it. Just look what they did to Ken Starwood who invented 4G LTE, or take a look what they did to Josh Malone the inventor of Bunch of Balloons. There are thousands more that got wiped out and do not have the time or resources to raise their voices but have been steamrolled by the government that was to up hold the law and protect its citizens from international corporations that are hoarding billions while they kill off a patent system that help them become the profitable corporate gluttons they are today. It’s outrages to see how America has deteriorated and have become nothing but yes men to Silicon Valley pimps.
Anon
September 18, 2019 07:34 pm
I only gave the petition a quick glance, and did NOT see the “Kavanaugh Scissors” meme that would provide the Court with the substantiated rationale for cutting through the Gordian Knot of its own creation.
palo alto ted
September 18, 2019 07:00 pm
And meanwhile, under the Williamson v. Citrix guidelines, generic terms for hardware open the door for means-plus-function claim treatment…

So a patentee theoretically needs to predict and describe hardware improvements for next-generation processors in their specification for their patents to last longer than the current technology, or risk being invalidated in the smoldering lava field of software patentability.

What a mess.
concerned
September 18, 2019 06:08 pm
“tread carefully in construing this exclusionary principle lest it swallows all of patent law. Mayo, 566 U. S., at ___ (slip op., at 2). At some level, “all inventions . . . embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Id., at ___ (slip op., at 2). Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. See Diamond v. Diehr, 450 U. S. 175, 187 (1981). “[A]pplication[s]” of such concepts “‘to a new and useful end,’” we have said, remain eligible for patent protection. Gottschalk v. Benson, 409 U. S. 63, 67 (1972).”

Yet, patent applications get rejected if the new and useful (novel and non-obvious) process does not improve the computer itself. So much for the new and useful end.