Ex Parte Kalt

Patent Trial and Appeal Board

Sep 20, 2012

11241556 (P.T.A.B. Sep. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/241,556 09/30/2005 David S. Kalt 7075/52 3857
7590 09/21/2012
Charles C. Valauskas, Esq.
VALAUSKAS & PINE, LLC
150 South Wacker Drive
Suite 620
Chicago, IL 60606
EXAMINER
BAIRD, EDWARD J
ART UNIT PAPER NUMBER
3695
MAIL DATE DELIVERY MODE
09/21/2012 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DAVID S. KALT1
____________________

Appeal 2011-005342
Application 11/241,556
Technology Center 3600
____________________
Before, MURRIEL E. CRAWFORD, KEVIN F. TURNER, and
MICHAEL W. KIM, Administrative Patent Judges.

TURNER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE2
Appellant appeals under 35 U.S.C. § 134 from a rejection of claim 1.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
THE INVENTION

1 Optionsxpress Holdings, Inc., is the real party in interest.
2 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed September 16, 2010) and Reply Brief (“Reply Br.,” filed January
4, 2011), and the Examiner’s Answer (“Ans.,” mailed November 4, 2010).
Appeal 2011-005342
Application No. 11/241,556

2
Appellant’s disclosure relates to a method for prioritized management
of financial instruments which provides an enhanced range of trading forms
for order entry and order execution. (Abs.)
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An interactive computerized online trading platform method
for prioritized management of financial instruments
comprising:
receiving an order through the interactive computerized online
trading platform for trading two or more of the financial
instruments;
accepting conditional criteria for the two or more of the financial
instruments, wherein the conditional criteria is a plurality of
trading options prioritized between the two or more of the
financial instruments specified by an individual investor
through the interactive computerized online trading platform;
and
executing actions automatically through the interactive
computerized online trading platform according to the
conditional criteria.
(App. Br., Claims Appendix 7.)

PRIOR ART REJECTION
The prior art reference relied upon by the Examiner in rejecting the
claim is:
Terashima 2002/0052821 A1 May 2, 2002

The Examiner rejected claim 1 under 35 U.S.C. § 102(b) as
anticipated by Terashima.

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Application No. 11/241,556

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ISSUE3
Does Terashima disclose an online trading platform which “accept[s]
conditional criteria for the two or more of the financial instruments, wherein
the conditional criteria is a plurality of trading options prioritized between
the two or more of the financial instruments specified by an individual
investor through the interactive computerized online trading platform,” as
recited by independent claim 1, such that it anticipates the subject matter of
claim 1 under 35 U.S.C. § 102(b)?

FINDINGS OF FACT
1. Appellant’s Specification describes examples of “conditional
criteria” as symbol, price, duration, time, and trigger, and states that, “an
order [is] placed only if/when the market price for the security (stock or
option) specified meets the specified criteria (greater than or less than a price
entered).” (P. 13, ll. 4-8 and 19-23.)
2. Terashima is directed to a trade support system which stabilizes the
market price of a security during its subscription period by processing buy
and sell orders received from customers’ terminals based on a determination
as to whether the acquired trade price meets the offering price suggested in a
public offering. (Abs; ¶ [0036].)
3. Terashima describes that its system executes buying and selling
orders, on behalf of customers, that match with each other, once the price

3 We have considered in this decision only those arguments that Appellant
actually raised in the Briefs. Arguments which Appellant could have made
but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii).
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Application No. 11/241,556

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evaluation unit determines whether the obtained trade price meets the
suggested offering price. (¶¶ [0021]; [0034].)
4. Terashima states:
trading order placement unit if [sic] places a buying or
selling order at a price within an allowable range around
the suggested price, when the price evaluation unit 1d
has detected an excessive difference between the trade
price and the suggested price, and only when the
subscription period checking unit 1e has determined that
the present date and time is within the subscription
period.
(¶ [0021].)
5. Terashima describes that each investor’s order includes a buy/sell
field indicating whether the order is a selling order or buying order, quantity
field, and price field specifying the volume and limit price of the offer or
bid. (¶ [0039].)
6. Terashima describes that its system prioritizes received orders in
terms of prices and reception times. (¶ [0037].)

ANALYSIS
Claim 1 rejected under 35 U.S.C. § 102(b) as being anticipated Terashima.
Appellant argues that Terashima fails to disclose an online trading
platform which “accept[s] conditional criteria for the two or more of the
financial instruments, wherein the conditional criteria is a plurality of trading
options prioritized between the two or more of the financial instruments
specified by an individual investor through the interactive computerized
online trading platform,” as recited by independent claim 1. (App. Br. 3;
Reply Br. 5.) Specifically, Appellant asserts that the trade price and
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Application No. 11/241,556

5
suggested price, and an excessive difference between them, as disclosed by
Terashima, are not “conditional criteria . . . specified by an individual
investor.” (App. Br. 5.)
We are not persuaded by Appellant’s argument and agree with the
Examiner that Terashima discloses “conditional criteria . . . specified by an
individual investor,” as presently claimed. In making this determination, we
agree with the Examiner’s broad, but reasonable interpretation of
“conditional criteria” to include a trading order placed based on an excessive
difference between the trade price and the suggested price disclosed in
Terashima. (Ans. 4-5; See also FF 3, 4.)
This interpretation is commensurate with Appellant’s Specification
which describes that “conditional criteria” include information such as
symbol, price, duration, time, and trigger. (FF 1.) Terashima describes that
its system executes buying and selling orders that match with each other
once the price evaluation unit determines whether the obtained trade price
meets the suggested offering price. (FF 2.) These orders are specified by
customers and include information indicating whether the order is a sell
order or buying order, a quantity, and price field which specifies the volume
and limit price of the offer or bid. (FF 5.) Thus, we find that Terashima
discloses an online trading platform which “accepts conditional
criteria . . . specified by an individual investor,” as presently claimed.
Additionally, Appellant argues that “prioritizing received orders in
terms of prices and reception times is not indicative of Appellant’s trading
options prioritized between two or more of financial instruments as specified
by the individual investor.” (Reply Br. 6-7.) We are not persuaded by
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Appellant’s argument and find that Terashima’s system prioritizes orders
received in terms of prices and reception times (FF 6), both of which
Appellant’s Specification describes as examples of conditional criteria. (FF
1.)
In the absence of any description in Appellant’s Specification as to the
definition of “prioritized,” we find any prioritization, such as that disclosed
in Terashima, satisfies the language of claim 1. See In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (“[d]uring examination [of
a patent application, a pending claim is] given [the] broadest reasonable
[construction] consistent with the specification, and . . . claim language
should be read in light of the specification as it would be interpreted by one
of ordinary skill in the art”) (internal citation and quotations omitted).
Therefore, we find that Terashima discloses an online trading platform
which “accept[s] conditional criteria for the two or more of the financial
instruments, wherein the conditional criteria is a plurality of trading options
prioritized between the two or more of the financial instruments specified by
an individual investor through the interactive computerized online trading
platform,” as recited by independent claim 1.
Accordingly, we are not persuaded by Appellant’s arguments, and as
such, we sustain the Examiner’s rejection of claim 1 under 35 U.S.C. §
102(b) as anticipated by Terashima.

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Application No. 11/241,556

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CONCLUSION
We conclude that Terashima discloses an online trading platform
trading platform which “accept[s] conditional criteria for the two or more of
the financial instruments, wherein the conditional criteria is a plurality of
trading options prioritized between the two or more of the financial
instruments specified by an individual investor through the interactive
computerized online trading platform,” as recited by independent claim 1,
and as such, anticipates the subject matter of independent claim 1 under 35
U.S.C. § 102(b).

DECISION
We affirm the Examiner’s rejection of claim 1.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1).

AFFIRMED