Trading Technologies International Inc v IBG LLC, Fed. Cir. 2017-2257
While it remains possible to obtain a patent for a graphic user interface (“GUI”) in the US, a top court has recently clarified that GUI patents will not be available if they solve human problems rather than computer problems. In this decision, the United States Court of Appeals for the Federal Circuit (“CAFC”) affirmed a decision of the Patent Trial and Appeal Board (“the Board”) which invalidated three patents for a financial trading GUI. [pg. 4]
Background
The US patents Nos. 7,533,056 (“the ‘056 Patent”), 7,212,999 (“the ‘999 Patent”) and 7,904,374 (“the ‘374 Patent”) filed by Trading Technologies International, Inc. (“TT”), relate to a GUI that allows a trader to view order trends for items, such as stocks, and provides trading information in graphical format. [pg. 3] All three patents were challenged under the Transitional Program for Covered Business Method Patents (“CBM review”) which enables competitors to challenge the validity of patents that have been granted for a business method. A method or apparatus for “performing data processing and other operations in the practice, administration, or management of a financial product or service” is typically ineligible for patent protection, unless it qualifies as a technological invention. [pg. 4]
In this decision, the CAFC determined that CBM Review was appropriate for challenging these GUI patents. It additionally ruled that the Board was correct in finding that all three patents were ineligible for patent protection. [pg. 8]
CBM Review: The Patents Claim an Abstract Idea
The CAFC found that the three patents failed to solve a technical problem using a technical solution, and therefore could be challenged under CBM Review. [pg. 8]
TT argued that the ‘056 Patent and ’999 Patent address technical problems related to speed, efficiency, and usability; however, the ‘999 Patent describes the invention as a solution that enables a trader to anticipate the market. According to the CFAC, “this invention makes the trader faster and more efficient, not the computer.” [pg. 9] For similar reasons, the court found that the US Patent 7,904,374 is also a business method and not a technological invention. [pg. 10, 13]
Having determined that the patents are CBM eligible, the CAFC considered patent eligibility. Under US law, patents cannot be granted for laws of nature, natural discoveries, or abstract ideas. This exception ensures that the universal building blocks of discovery are free to be used by any inventor. The CAFC reaffirmed the Board’s conclusions that TT’s three patents are abstract ideas by applying the Alice-Mayo two-step test. The Alice-Mayo test first asks whether the patent is directed to a patent-ineligible concept. If so, the court must consider elements of each claim both individually and as an ordered combination to determine whether the patent is patent-eligible material. [pg. 13-14]
Applying the test, the CAFC determined that the ‘999 Patent claims the abstract idea of graphing (or displaying) bids and offers to assist a trader in making orders. Previous decisions by the CAFC have confirmed that collecting information is an abstract idea. [pg. 14] The fact that the trader must drag and drop an icon onto the graph to place an order does not alter the finding that the patent claims an abstract idea, nor does the fact that it is a computer-based method. The same abstract idea is found to be the subject-matter of the ‘056 Patent. [pg. 8, 17]
Likewise, the ‘374 Patent also attempts to claim an abstract idea. The CFAC agreed with the Board’s conclusion that the patent claims the concept of receiving user inputs to send a trade order. The solution provided by the patent does not improve the functioning of a computer. In fact, the patent asserts that the method can be implemented “on any existing or future terminal or device” and describes the programming as insignificant. [pg.18-19]
Commentary
This recent decision offers guidance to software developers who seek to protect novel elements of their GUI. The CAFC states that patentable GUI must offer improvements in computer functionality such as speed and efficiency, whereas improvements that assist a human user to operate the software faster or more reliably will not be protectable under US patent law. Copyright and other IP measures may be applied to protect these elements of GUI.
Software developers should consult a patent agent or attorney to determine which elements of their code may be protected under a US patent and what steps can be taken to protect the patent-ineligible elements. Please contact a PCK IP professional for more information.