UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
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`TRADE TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Case CBM2014-00131
`Patent No. 7,533,056
`____________________
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,533,056
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`TDA 1042
`TD Ameritrade v. TT
`CBM2014-00131
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
`
`TRADE TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Case CBM2014-00131
`Patent No. 7,533,056
`____________________
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,533,056
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`TDA 1042
`TD Ameritrade v. TT
`CBM2014-00131
`
`
`
`I, Kendyl A. Román, declare as follows:
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`1.
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`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
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`behalf of Petitioner, TD Ameritrade Holding Corp., for the above-captioned
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`covered business method review proceeding involving U.S. Patent 7,533,056, to
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`Friesen, et al. titled “User Interface for an Electronic Trading System.” I
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`understand that the ’055 Patent is currently assigned to Trading Technologies
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`International, Inc. (“TT”).
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`2.
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`I have reviewed the following documents in making this declaration:
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`a. The ’056 patent.
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`b. The Board’s Decision to Institute issued on December 2, 2014.
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`c. TT’s Patent Owner Response (POR) filed March 6, 2015.
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`d. The translation of record of “System for Buying and Selling Futures
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`and Options Transaction Terminal Operational Guidelines” (“TSE”).
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`(Ex. 1004).
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`e. Harold Abilock’s translation of Chapter 7 of the TSE document,
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`which is attached to his declaration as an Appendix. I concentrated on
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`the portions cited herein, but I read the entire chapter. The Abilock
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`declaration is Exhibit 2097 in this proceeding, and his translation of
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`- 2 -
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`
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`TSE is at pages 74 to 103 of the filed declaration. I also reviewed
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`his revised translation portions of page 7-25 of TSE (i.e., page 0115 of
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`the TSE exhibits 1003 and 1004). Specifically, I reviewed his
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`translation of “bullet 2” (as he calls it), which is the first bullet in the
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`middle of page 7-25 (paragraph 69 at pages 32-33 of his declaration)
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`and the text in the figure at the bottom of page 7-25 (paragraph 77 at
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`page 36 of his declaration).
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`f. My previous declaration in this proceeding (Ex. 1032).
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`g. U.S. Patent No. 5,136,501 to Silverman et al. (“Silverman”), Exhibit
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`1010.
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`h. U.S. Patent No. 5,375,055 to Togher, et al. (“Togher”), Exhibit 1008)
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`3.
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`I understand that TT alleged that its claims speed up data gathering
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`and display so that a user may “quickly ascertain the current state of the market.”
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`POR at 3-4. The claims do not recite any speed or time limitations, so claim 1
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`encompasses a system that is so slow as to be unsatisfactory for the typical trader,
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`so long at that system performs the recited steps of receiving bids and offers from
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`the exchange, displaying those bids and offers, receiving a user input for a default
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`quantity, receiving a user input for a desired price, and sending the order to the
`
`exchange. A computer performing these steps is repeatedly receiving data and
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`- 3 -
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`
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`then performing repetitive calculations to determine where to display each element,
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`and receiving user input for an order and sending it to the exchange. Such
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`repetitive calculations and operations may be performed quickly by a computer,
`
`but the claims recite no such requirement. Also, other than the conventional steps
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`of receiving and sending data, claim 1 could be performed by a human using pen-
`
`and-paper. The person could be told the bids and offers, which he or she could
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`plot along a price axis. The person could mentally determine that his or her default
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`order is of a given size (e.g., 100 shares). The person could then point to the
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`location along the graph to indicate his or her desired price, and could then place
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`an order (e.g., over the telephone to his broker) at that price for the default
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`quantity.
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`4.
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`I understand that TT alleged that certain products do not infringe.
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`POR at 14-17. Specifically, TT identified TD Ameritrade’s “thinkorswim”
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`product and FIG. 2 of TT’s own ’132 patent as noninfringing. TT did not explain
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`why they do not infringe. It is not clear from TT’s arguments and the material TT
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`provided in the POR, but I do not see any disclosure that these products include the
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`conventional and routine steps of setting a default value, receiving a selected price
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`for an order, or sending the order to the exchange. I understand from my work in
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`the proceedings from the proceedings involving the ’132 and ’411 patents,
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`however, that the product illustrated by FIG. 2 includes single-action order entry.
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`- 4 -
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`
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`5.
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`I understand that TT argues (and its expert testifies) that it would be
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`bad design to use a last-entered value in a system that also uses a default value that
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`survives shutdown. That is incorrect. When first started, the system would use the
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`default value that survived shutdown, and the last-entered value for subsequent
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`operations. This default value may have been modified (typically by using a
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`settings dialog or similar), and such modifications typically survive shutdown. But
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`if the user modifies the value or setting, the system may user that setting the next
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`time, but that last-entered value will not typically survive shutdown. Cooper at
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`187-188 (“Instead of choosing a hard-wired default, the program can use the
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`previous setting as the default and it will have much better chance of giving the
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`user what he wanted.”) (Ex. 1015); see also Open Look at 47 (recording and using
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`icon’s new position after moved from default location); 60 (same for window) (Ex.
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`1021). This is also seen in common applications such as Microsoft Word, where
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`the print command uses the default printer until the user switches to another
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`printer. Word keeps that last-used printer until Word is shut down. Upon
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`subsequent start-up, Word has forgotten the last-used printer, and instead defaults
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`to the default printer.
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`6.
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`The patent does not explain what it means to “indicate” a user’s order
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`as recited in claim 5. But one of ordinary skill would have understood that
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`- 5 -
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`
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`incrementing the total order size indicated by an alphanumeric symbol (or other
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`indicator of size) by the size of the user’s order would indicate that user’s order.
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`7.
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`I understand that TT contends that the translation of record is not
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`sufficiently accurate, pointing to the translation of “meigara” as “brand,” “saiken”
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`as “securities” and “bond,” “shisuu” as “security” instead of “index,” and various
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`minor errors and small omissions. POR at 26-27. My opinion regarding the
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`teaching of TSE did not turn on any of these alleged errors. For example, the TSE
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`translation of record is clearly referring to trading various equities, exactly what
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`type of equities those are does not matter. I recognize that the translation of record
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`uses the term “brand” to mean a particular equity, e.g., the “select brand” dialog
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`shown at page 7-7 (Ex. 1004 at 0097), reproduced below:
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`- 6 -
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`
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`(Ex. 1004 at 0097). In context, it was clear that the translation was explaining what
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`type of equity to select. It does not matter that it uses the term “brand” instead of
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`“issue” or “securities” instead of “bonds,” as Mr. Abilock did in his original
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`translation. Both convey the same teaching:
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`- 7 -
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`(Ex. 2097 at 80). I further note that Mr. Abilock’s translation is missing the
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`language in the middle bar, which here, could be crucial as it is explaining that the
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`enter (send) key is used to set the desired equity.
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`8.
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`The findings and opinions set forth in this declaration are based on my
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`work and examinations to date. I may continue my examinations. I may also
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`receive additional documentation and other factual evidence over the course of this
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`litigation that will allow me to supplement and/or refine my opinions. I reserve the
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`- 8 -
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`
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`right to add to, alter, or delete my opinions and my declaration upon discovery of
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`any additional information. I reserve the right to make such changes as may be
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`deemed necessary.
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`9.
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`In signing this declaration, I recognize that the declaration will be
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`filed as evidence in a proceeding before the Patent Trial and Appeal Board of the
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`United States Patent and Trademark Office. I also recognize that I may be subject
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`to cross-examination in the case and that cross-examination will take place within
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`the United States. If cross-examination is required of me, I will appear for cross-
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`examination within the United States during the time allotted for cross-
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`examination.
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`10.
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`I hereby declare that all statements made herein of my own
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`knowledge are true and that all statements made on information and belief are
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`believed to be true; and further that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`or imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code.
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`- 9 -
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`
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`Executed this 29th day of May 2015 in Sunnyvale, CA.
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`zz/Z/A’M
`
`Kendyl A. Romain
`
`-10-
`
`
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