TRADING TECHNOLOGIES INTERNATIONAL INC v. IBG LLC LLC (2019)

United States Court of Appeals, Federal Circuit.

TRADING TECHNOLOGIES INTERNATIONAL, INC., Appellant v. IBG LLC, Interactive Brokers LLC, Appellees
United States, Intervenor Trading Technologies International, Inc., Appellant v. IBG LLC, Interactive Brokers LLC, Appellees
United States, Intervenor Trading Technologies International, Inc., Appellant v. IBG LLC, Interactive Brokers LLC, Appellees
United States, Intervenor Trading Technologies International, Inc., Appellant v. United States, Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office, Intervenors

2018-1105

Decided: May 21, 2019

Before Hughes, Mayer, and Linn, Circuit Judges.

Michael David Gannon, Baker & Hostetler LLP, Chicago, IL, argued for appellant. Also represented by Leif R. Sigmond, Jr., Jennifer Kurcz; Alaina J. Lakawicz, Philadelphia, PA; Steven Borsand, Jay Quentin Knobloch, Trading Technologies International, Inc., Chicago, IL. Byron Leroy Pickard, Sterne Kessler Goldstein & Fox, PLLC, Washington, DC, argued for appellees in 2018-1105, 2018-1302, 2018-1438. Also represented by Robert Evan Sokohl, Richard M. Bemben, Jon Wright. Katherine Twomey Allen, Appellate Staff, Civil Division, United States Department of Justice, Washington, DC, argued for intervenor United States. 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 Trademark Office, Alexandria, VA. Amy J. Nelson, Office of the Solicitor, United States Patent and Trademark Office, Alexandria, VA, argued for intervenor Andrei Iancu in 2018-1443. Also represented by Thomas W. Krause, William La Marca,Joseph Matal, Farheena Yasmeen Rasheed.

Trading Technologies International, Inc., appeals four Covered Business Method Review decisions of the Patent Trial and Appeal Board finding Trading Technologies’ patents ineligible under 35 U.S.C. § 101. Recently, this Court issued two precedential opinions affirming Board decisions finding several of Trading Technologies related patents unpatentable under § 101. Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1084 (Fed. Cir. 2019) (IBG I ); Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378 (Fed. Cir. 2019) (IBG II ). The parties submitted supplemental briefing on whether IBG I dictated the outcome of the present appeals. The parties also discussed the effect of IBG I and IBG II at oral argument.

We are not persuaded by Trading Technologies’ arguments that the patents at issue here, U.S. Patent Nos. 7,412,416 B2; 7,818,247 B2; 7,685,055 B2; and 7,693,768 B2, are distinguishable from the patents invalidated in IBG I and IBG II. Like IBG I and IBG II, the challenged patents “focus[ ] on improving the trader, not the functioning of the computer.” IBG II, 921 F.3d at 1383; see also IBG I, 921 F.3d at 1091. Although these patents may provide different information than the patents in IBG I and IBG II, information is “intangible” and its “particular content ․ does not change its character as information.” Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). We therefore hold that IBG I and IBG II control and affirm the Board’s decisions.

We also find Trading Technologies waived its constitutional arguments. See IBG II, 921 F.3d at 1385.

AFFIRMED

Hughes, Circuit Judge.

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