IB - Booktrader 906 no more single click!

Blame the overpaid lawyers and the judges with early Alzheimer's.

Did Visicalc get a patent on a computer spreadsheet? Just googled it and got

In November of 1981, Bricklin received the Grace Murray Hopper Award from the Association for Computing Machinery in honor of his innovation. VisiCalc was soon sold to Lotus Development Corporation, where it developed into the Lotus 1-2-3 spreadsheet for the PC by 1983. Bricklin never received a patent for VisiCalc. It was not until after 1981 that software programs were made eligible for patents by the Supreme Court.


So if not for that , they would have made billions off the patent.

 

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.

TT's patent does not pertain to a sequence of numbers per se - the actual numbers in any of the price display is irrelevant. It isn't reasonable to simplify the concept of the patent to demonstrate its lack of novelty - novelty must be judged on what is actually claimed in light of what the specification describes. Also, any patent specification forms its own dictionary, so the meaning of words in the claims must be interpreted in light of the specification.

The subject matter of the patent appears to be suitable because it doesn't relate to a mere algorithm or a simple arrangment of information, it relates to a method of display that provides an improved interaction with the DOM for potentially easier trading. To infringe the patent, all the features of the claim must be performed, which include 'dynmically' displaying the bid and ask prices on a static price ladder, where the bid and ask correspond to the market prices.

To not 'violate' that is easy, just don't have dynamic bid and ask prices on a static price ladder. A sequence of numbers certainly doesn't infringe it, a 'dynamic' price ladder doesn't infringe it. A spreadsheet doesn't infringe it unless someone purposely programs it to - which they may do if they find that it is more useful - that's the inventive part and that's apparently why everyone has copied it.

It should be noted that the scope of the claims as granted and interpreted by the Courts was much narrower than what TT tried to argue - particularly in regard to static and dynamic. The way TT tried to have the words interpreted would clearly be overly broad and likely not valid, but the Courts interpreted the terms more narrowly and (so far) have found them to be valid. So there's not much point arguing about an interpretation of the claims that have never been legally accepted. The claims as accepted and enforced are certainly not infringed by a spreadsheet, a sequence of numbers or even a similar method with auto-centering.

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), then that is what the claim is referring to.

The patent also shouldn't be confused with a final product. The patent defines a function that a product can have, it doesn't define all the product's functions. So moving the mouse to move the cursor to the desired location is certainly a separate action, but it isn't a necessary action if the cursor is already in the desired location. So the minimum required actions to perform a trade is one, simply by clicking on the bid or ask on the DOM. This is either novel or it isn't - if it isn't simply show where all the features of the claim have been performed in a system earlier than the patent date...

I guess my main point is that ther claims must be construed with regard to the specification and the intent of the drafter - which could lead to endless debate, which is why the Courts must make the determination of the claims meanings, otherwise it would never get to the next step.

 

What can be patented relates in many way to what it accomplishes. TT's method of displaying the dynamic bid and ask on a static price ladder was intended to make it easier to see the order flow and to allow an potentially more accurate trade to be performed. A spreadsheet doesn't provide those functions unless someone programs it to - which of course they wouldn't until they thought of the idea in the first place - that's the inventive part...

 

One of the challenges with the TT patent is that it seems obvious to everyone today, but it likely wasn't at the time of the invention. I'm sure significant money has been spent trying to find well-documented prior art, and so far no one has succeeded.

So whether we like it or not, TT likely has a valid patent, and the competition either has to work around it or pay up.

I can think of quite a few "crazy" patents where I thought the invention was obvious (and would have been at the time), but they nonetheless stood the test of time and litigation.

 

This is why we need patent reform. Businesses should be rewarded for continually creating value for the marketplace, NOT by rent seeking behavior.

All the big companies (and sharp entrepreneurs) operate this way, it is no unique sin of TT. Building up a patent portfolio is pure leverage. Who needs to actually build or create anything if you can hold those who do build and create ransom??

They (Most big companies) literally hire hundreds of engineers to sit around and do nothing but try to patent as many ideas as they can around common programs/electrical devices/etc, then extorting money via lawsuits out of other companies that come up with similar ideas. Its a big game they all play, with lawyers and other middlemen cheering the madness on and collecting huge fees.

The notion that these rent seeking companies are creating value for society or are a genuine free-market phenomenon is a hoax. They are the product of an overreaching State.

 

What would your solution be?

I could only suggest that patent terms are amended to be more commensurate with the time and effort taken to develop the technology. This is something already available for pharmaceuitcal patents where an extension is provided when it takes up most of the patent term to get regulatory approval before the product can even be sold.

Perhaps the opposite could be applied to software based patents, where the patent term is much shorter than the standard 20 years due to the fast turn around time and way new software is simply layered onto old software.

- But then again nearly all of the major software developments to date were achieved without the potential benefit of patent protection.

 

I realise that it was accepted but I don’t think that in itself, or the other arguments put forward, explains ‘why’.
I'm not sure anyone really knows why. There seem to be many grounds for exclusion. As you state, you’re 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 ‘why’. So far I have yet to hear any.

This wouldn’t 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 “it seems obvious to everyone today, but it likely wasn't at the time of the invention” simply isn’t 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 isn’t 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 – 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 – and then converts that to a set of digital images and digital entry – is not enough to qualify it as a ‘novel’ 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 ‘novel’. 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'.

That isn’t 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, that’s OK. If not, that’s an infringement – so it’s hardly irrelevant. The point being that displaying any scale, redisplaying it (or not redisplaying it), is not novel – just as it isn’t 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:

Not only is that NOT easy, it’s either impossible - or grounds for patent exclusion because it would restrict the “Standard arrangements of facts, such as alphabetical or numerical order, which are in the common domain”.
i.e.

1. If you require the removal of the Bid and Ask entirely in order to comply with the patent, then you’ll prevent the “standard arangement of public domain facts” being available – 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?

I don't know which, more narrow, Court interpretation found to be valid you’re referring to but the 2007 claim on CQG’s site ends with the Judge denying TT’s motion to reconsider. The Court only granted reconsideration of its construction of ‘plurality’ which TT tried to argue also included ‘one’ Bid or ‘one’ Ask. However, upon reconsideration, the Court continued to construe ‘plurality’ as ‘more than one Bid and more than one Ask’.

The rest of the claim pertaining to TT’s part-time infringement argument was rejected, stating that:

“Plaintiff’s ‘comprising’ argument, however fails. Unlike many cases cited by plaintiff, its patents’ claim include a limitation of a static or non-moving condition. Any movement takes a product or process outside the scope of plaintiff’s claim.”

and

“Where however, the claim limitation itself – here, a static condition – 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 plaintiff’s patents.”

I don’t think the patent relating to the ‘static’ issue should have been allowed in the first place but the result of the 2007 claim and the recent enforced change to TWS’ 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:

I agree. Without knowing the full specification of the patent we can’t know if the definition of ‘single action’ 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 ‘single action or equivalent’ 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.

 

I don't think it would make any difference because the patent makes no distinction as to the physical location of the list(s) of Bids/Asks beyond each lining up with the price scale axis.
Left, Right, (or Above, Below on a horizontal price scale) is irrelevant I think.

However, the patent does use the term "common static price axis". That could be interpreted to mean that the Bid and Ask columns share one price axis.
If the scope of 'common' isn't broader than 'just one' in the full specification, and if the Bids and Asks each had their own price axis, I don't know if that might fall outside of the patent's protection.

 

All this talk of court rulings hides the point that many people can't or won't go through the expense of fighting this. I wrote an IB front end that has some nice features and has a DOM-like interface and I wanted to share it with others but now what? I certainly can't afford to fight a lawsuit from TT, not if a big company like IB folded.


The questions that need answering aren't whether there are prior art, whether this is sufficiently innovative but whether patents make sense for computer programs at all. I'll guarantee that if there were no patents on software, tech companies wouldn't stop developing new tools and innovation wouldn't stop but would instead accelerate. The ostensible goal of patents is to provide incentive for research and development which wouldn't be possible if the results were immediately stolen, something which make sense for drugs and inventions which take millions of dollars to develop and millions more to bring to market but which can be replicated cheaply. It makes absolutely no sense for software, where one new feature is much like another and new features are a minor part of the development process.

Instead of enriching society by encouraging innovation, software patents are stifling development and making us poorer. They fail in their goals and all software patents should be revoked, prior art or no. Use trademark and copyright laws to protect distinctive implementations, that's more that enough protection and leaves us with a fertile, fruitful field for new ideas.

 

Been years since I took a patent law class, but I believe that if you do not derive any benefit beyond your personal use then you are not in violation of the patent. I am not sure if this extends to "giving" the software away even if you get nothing out of it however.