throbber
Cierk's File Copy
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`2407
`
`} ) ) )
`
`TRADING TECHNOLOGIES INTERNATIONAL,
`INC.,
`
`Plaintiff,
`
`v.
`
`) No. 04 C 5312
`)
`
`eSPEED,
`
`INC.,
`
`eSPEED INTERNATIONAL,)
`
`LTD., Ecco LLC, and ECCOWARE, LTD.,) Chicago, Illinois
`)
`September 27,'2007
`)
`9:45 o'clock a.m.
`
`Defendants.
`
`VOLUME 12-A
`TRIAL TRANSCRIPT OF PROCEEDINGS
`
`BEFORE THE HONORABLE JAMES B. MORAN, and a JURY
`
`APPEARANCES:
`
`Trading Technologies
`International, Inc., by:
`
`and
`
`% L E D
`
`E:
`
`wascaAaLw. WWNSURT
`, D s.
`
`TRADING TECHNOLOGIES
`INTERNATIONAL,
`INC.,
`ME. STEVEN F. BORSAND
`222 South Riverside Drive
`
`Chicago, Illinois 60606
`312—476-1000
`
`steve.borsand@
`tradingtechnolcgies.com
`
`MCDONNELL, BOEHNEN, HULBERT &
`BERGHOFF, LTD.
`MR. PAUL H. BERGHOFF
`MR. S. RICHARD GARDEN
`
`MR. CHRISTOPHER M. CAVAN
`MR. MICHAEL D. GANNON
`MS.
`JENNIFER M. KURCZ
`
`MR. MATTHEW J. SAMPSON
`MR. LEIF R. SIGMOND
`
`300 South Wacker Drive
`
`Chicago, Illinois 60606
`312~913~0001
`
`berghoffembhb .com
`
`kurcz@mbhb.com
`
`0001
`0001
`
`TDA 1047
`TDA 1047
`TD Ameritrade V. TT
`TD Ameritrade v. TT
`CBM2014—001 31
`CBM2014-00131
`
`(K
`\
`(\’
`SK
`(\6
`
`1J2. _
`,-
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`-
`‘1‘
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`l
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`eSpeed, Inc., eSpeed
`International, Inc.,
`Ecco LLC, Eccoware,
`LTD., by:
`
`WINSTON & STRAWN
`MR. GEORGE C. LOMBARDI
`MR. RAYMOND C. PERKINS
`MR.
`IMRON T. ALY
`MR. KEVIN BANASIK
`
`2408
`
`MS. ELIZABETH HARTFORD ERICKSON
`MR. ANDREW M.
`JOHNSTONE
`
`MS. TRACEY J. ALLEN
`MR.
`JAMES M. HILMERT
`
`35 West Wacker Drive
`
`Chicago, Illinois 60601
`312—558—5600
`
`g10mbardi@winston.com
`
`rperkinsewinston.com
`
`LAW OFFICES OF
`
`GARY A. ROSEN, P.C.
`MR. GARY A. ROSEN
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`1831 Chestnut Street,
`Pennsylvania
`Philadelphia,
`215—972—0600
`
`Suite 802
`
`191
`
`Rosenthal Collins Group,
`LLC, by:
`
`DOWELL BAKER
`MR. GEOFFREY A. BAKER
`
`201 Main Street
`
`IN 47901
`Lafayette,
`765—429—4004
`
`gabaker@dowellbaker.com
`
`Court Reporter:
`
`MS. CAROLYN COX,
`
`csn, RPR, CRR
`
`Official Court Reporter
`219 S. Dearborn Street, Suite 1854—B
`Chicago, Illinois
`60604
`(312) 435—5639
`
`0002
`0002
`
`

`

`DAVID SILVERMAN, DIRECT EXAMINATION CONTINUED
`
`BY MR. PERKINS:
`
`DAVID SILVERMAN, CROSS—EXAMINATION
`
`BY MR. SIGMOND:
`
`CROSS EXAMINATION
`
`BY
`
`REDIRECT EXAMINATION
`
`BY MR.
`
`RECROSS EXAMINATION
`
`DIRECT EXAMINATION
`
`CROSS EXAMINATION
`
`BY MR. GANNON
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`REDIRECT EXAMINATION
`
`BY MR. LOMBARDI
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`2409
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`0003
`0003
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`

`

`2585
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`:09:
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`a"" ' .15
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`screen?
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`A. Yes.
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`Q.
`
`And what is your opinion on that?
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`A. Yes, it would be obvious to add single-action to
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`any trading screen based on what
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`the practitioners knew
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`at the time, and the many examples in the prior art that
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`already show single—action with a variety of trading
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`15:
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`screens.
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`Q. Okay.
`
`Now, have we actually asked you to look at one
`
`trading screen in particular as part of your work in
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`this case?
`
`A. Yes.
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`:10:
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`Q.
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`And which trading screen is that that we have
`
`asked to you look at?
`
`A.
`
`Tokyo Stock Exchange system.
`
`Q. What is the source of yOur information about the
`
`Tokyo Stock Exchange system?
`
`A.
`
`I was given a set of translations of the user
`
`system for the Tokyo Stock Exchange.
`
`The original is in Japanese and I don't read
`
`Japanese,
`
`so I used a set of translations.
`
`Some were
`
`prepared by Trading Technologies,
`
`some were prepared by
`
`eSpeed translators, and I used all of those documents
`
`:10:15
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`25
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`and compared them to arrive at an understanding of what
`
`0004
`0004
`
`

`

`2586
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`.‘15:
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`10:
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`18
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`the document meant.
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`Q. And just for the record, with your binder,
`
`just
`
`so we have this, would you identify the Japanese version
`
`of the manual so we have that?
`
`A.
`
`Sure.
`
`The Japanese version of the manual is DTX 179.
`
`Q. Okay.
`
`And then the translation we are going to use
`
`today is the one that you obtained from eSpeed;
`
`is that
`
`right?
`
`A.
`
`That is correct.
`
`Q.
`
`If we can put up on the screen, DTX 2101, please.
`
`And if we can blow that up.
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`15:
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`111'.
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`Can you either see the screen or have it in front
`
`you?
`
`A.
`
`I have it.
`
`Q. What is that first page?
`
`A.
`
`The first page of this translation is a
`
`certification by the company that performed the
`
`translation.
`
`They are listing —- well it states, This
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`is to certify that the attached translation is,
`
`to the
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`best of my knowledge and belief, a true and accurate
`
`translation from Japanese into English of the following
`
`pages of the Bates ranges.
`
`15:11:
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`27
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`25
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`Then there is a long list of the numbered pages
`
`0005
`0005
`
`

`

`2587
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`«45:
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`02
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`11
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`from the Japanese manual.
`
`Q. And Bates pages, you understand to be pages that
`
`people in litigation put at the bottom of a page;
`
`is
`
`that right?
`
`A. Right,
`
`those numbers are the Bates numbers.
`
`Q. All right.
`
`Do you have an understanding why the translation
`
`is done in those clumps of pages?
`
`A. Yes,
`
`two reasons.
`
`First,
`
`the document came from the Tokyo Stock
`
`Exchange initially in portions.
`
`They first sent
`
`the
`
`portions that they thought Were most important,
`
`particular chapters or sections, and then subsequently
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`15
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`:12:
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`they sent the entire manual. That is one part of it.
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`Then the second part is, big sections of this
`
`manual are not related to this case, and the cost of
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`translating from Japanese to English is very high, and
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`so only sections that are related to the topic here were
`
`translated.
`
`So there are places in the manual where chapters
`
`were not relevant and were not translated.
`
`Q. Okay.
`
`So in the document marked as DTX 2101, which the
`
`-— with the certification, it is fair to say that the
`
`pages are not necessarily in the order that they would
`
`0006
`0006
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`

`

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`,-715:
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`have appeared in a complete manual;
`
`is that right?
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`15:
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`A. Right.
`
`Q. And have we put together with the same pages,
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`just putting them in the proper order, a document?
`
`A. Yes.
`
`Q. And I will show you what has been marked as DTX
`
`2101-A.
`
`Is that what that document is?
`
`A.
`
`2101—A is the translation of the Tokyo Stock
`
`Exchange user's manual.
`
`It is titled, Futures Option
`
`Trading System: Guidelines For Operating the Trading
`
`Terminals by the Tokyo Stock Exchange.
`
`Q. Okay. All right.
`
`15:
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`So, you said that there are multiple translations
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`done in this case; is that right?
`
`A. That is correct.
`
`Q.
`
`In looking at the multiple translations do you
`
`find anything in any of them that contradicted your
`
`ultimate conclusion?
`
`A. No.
`
`Q. Were they all consistent on the important points?
`
`A.
`
`They are consistent in translation.
`
`Q. Okay.
`
`A.
`
`There is one version of the two provided by
`
`I5:
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`13:40
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`25
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`Trading Technologies where the translator mentioned that
`
`0007
`0007
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`

`

`2589
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`......7.15:
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`he was uncertain of the meaning of a couple of phrases.
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`ll
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`Q. And did that effect your opinion at all?
`
`A. No, because the other translation that they
`
`provided was not -- did not have any questions in
`
`consistency and the actual phrases translated by the
`
`gentleman were the same meaning as in the other
`
`documents.
`
`Q. Okay.
`
`Let's jump into the document.
`
`If we can go back
`
`to the 2101, Daniel, Bates Page 628.
`
`I will put it on the ELMO.
`
`It may-be easier that
`
`way.
`
`Is this the cover page of the Tokyo Stock
`
`15:
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`Exchange manual,
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`the translated version?
`
`A. Yes.
`
`Q. Let's show the date, we will go in a couple
`
`pages.
`
`Do you see the date there?
`
`A. Correct, August, 1998.
`
`Q. Okay.
`
`The manual,
`
`I take it, tells us something about
`
`the way that the Tokyo Stock Exchange system functions;
`
`is that right?
`
`A. Yes, it does.
`
`Q. Okay.
`
`0008
`0008
`
`

`

`Okay.
`
`2650
`
`a”??? Yes.
`
`All of those claims are obvious.
`
`We are looking at 3659, right?
`
`MR. LOMBARDI:
`
`Thank, Your Honor.
`
`CROSS EXAMINATION
`
`BY MR. GANNON:
`
`Q. May it please the Court.
`
`Good afternoon, Mr. Dezmelyk.
`
`Do you recall me taking your deposition in this
`
`case?
`
`A. Yes,
`
`I do. Good afternoon.
`
`Q. Mr. Dezmelyk, you never designed or developed
`
`is
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`:30:
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`is
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`graphical user interfaces for electronic trading;
`
`that correct?
`
`A.
`
`That is correct.
`
`Q. And you have no experience in electronic trading
`
`prior to this case;
`
`is that correct?
`
`A.
`
`That is correct.
`
`Q. And you are not a trader yourself, right?
`
`A.
`
`No.
`
`Q. And you have never traded on an electronic
`
`exchange interface?
`
`A. No,
`
`I have not.
`
`Q.
`
`And you are not an expert in electronic trading?
`
`0009
`0009
`
`

`

`2651
`
`,7“ 16 :
`
`31:
`
`00
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`A. No,
`
`I am not.
`
`16:
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`31
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`16:
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`34
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`10
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`ll
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`13
`
`Q.
`
`And in preparing your opinions in this case, you
`
`did not talk to any electronic traders, correct?
`
`A.
`
`No,
`
`I didn't.
`
`Q.
`
`Now, you are aware of the fact that an
`
`obviousness analysis can take into account secondary
`
`considerations, such as commercial success, copying,
`
`initial skepticism, widespread praise, and licensing of
`
`the invention, correct?
`
`A. Yes,
`
`those are some of the secondary
`
`considerations that can be evaluated.
`
`Q.
`
`And informing your opinion of obviousness, you
`
`didn't take into account a single secondary
`
`16:
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`31:
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`34
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`:31
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`32
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`1.6:
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`32:
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`O3
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`14
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`consideration;
`
`is that correct?
`
`A. No,
`
`that is not correct.
`
`I
`
`looked at them and realized that none of them
`
`could effect the outcome. That is,
`
`to whatever extent
`
`they may have had some input or something,
`
`that they
`
`were overwhelmed by the other evidence of obviousness.
`
`So there was no amount of any one of those
`
`characteristics or secondary concerns that could have
`
`effected the balance.
`
`MR. GANNON: Could you play clip RD17,
`
`please?
`
`0010
`0010
`
`

`

`2652
`
`"Q.
`
`Did you consider any
`
`secondary considerations
`
`in rendering your opinion
`
`that the claims of the TT
`
`patents in suit are
`
`obvious?
`
`"A.
`
`No —-
`
`“
`
`MR. LOMBARDI: Your Honor, not only did that
`
`not play the whole context, he cut it off in the middle
`
`of the answer.
`
`THE COURT:
`
`You should finish the answer.
`
`MR. LOMBARDI: And could I have the page and
`
`32:
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`12
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`._ 216:
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`16:
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`32:
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`too, counsel?
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`16:
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`line number
`
`MR. GANNON:
`
`Page 202, Lines 12 through 15.
`
`BY MR. GANNON:
`
`Q.
`
`Do you understand --
`
`MR. LOMBARDI:
`
`I
`
`think the judge indicated
`
`that you ~-
`
`THE COURT:
`
`You should play the rest of the
`
`answer.
`
`You cut him off in the middle of his answer.
`
`MR. GANNON: Your Honor, we don‘t have the
`
`rest of the clip.
`
`THE COURT:
`
`It may not be in the video, but
`
`it was in the -- in the audio, but it was in the video.
`
`0011
`0011
`
`

`

`33:
`
`08
`
`H.716:
`
`MR.
`
`LOMBARDI:
`
`I have it if counsel needs
`
`2653
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`16:
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`33
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`:10
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`10
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`
`it.
`
`it to him?
`
`THE
`
`COURT:
`
`Okay.
`
`MR.
`
`LOMBARDI:
`
`Should I read it or just hand
`
`THE
`
`COURT:
`
`Hand it to counsel.
`
`MR.
`
`LOMBARDI:
`
`Okay.
`
`BY MR.
`
`GANNON:
`
`”Q.
`
`Did you consider any
`
`secondary considerations
`
`in rendering your opinion
`
`33:
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`‘. 6
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`:58
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`24
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`25
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`that the claims of the TT
`
`patents in this suit are
`
`obvious?
`
`"A.
`
`No.
`
`As I note in here,
`
`in light of the clear
`
`obviousness of the
`
`asserted claims of the
`
`'132 and '304 patents,
`
`any secondary
`
`considerations are
`
`unlikely to affect my
`
`opinion."
`
`0012
`0012
`
`

`

`2654
`
`.16:
`
`33
`
`:53
`
`BY MR. GANNON:
`
`16:
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`34
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`:00
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`16:
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`34
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`ll
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`12
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`13
`
`Q.
`
`Is that accurate, Mr. Dezmelyk?
`
`A. Yes.
`
`Q.
`
`Do you understand that you are always supposed to
`
`consider secondary considerations in the context of an
`
`obviousness inquiry?
`
`A. Yes, and I did to establish that they could have
`
`no effect on the outcome.
`
`Q. Well, did you consider any evidence of copying in
`
`this case, Mr. Dezmelyk?
`
`A. Well,
`
`in general,
`
`in software, it is very
`
`difficult to see if the visual appearance of a user
`
`interface is indicative of copying in the sense that it
`
`34:
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`01
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`24
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`25
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`is relevant to an inquiry into obviousness because there
`
`is a very strong standardization in interfaces.
`
`There
`
`are a lot of common components, and when the components
`
`are present to such an extent that -- as they are here,
`
`then that is not a test where you are going to get
`
`useful information from the question of copying.
`
`To look at that a little bit further, we have the
`
`visual display part here existing in the TSE prior art.
`
`That is, it has a virtually identical static price axis
`
`with dynamic bids and asks, it is completely present in
`
`the prior art.
`
`So the question then becomes:
`
`Is there —- would
`
`0013
`0013
`
`

`

`2655
`
`_.. 16:
`
`35:
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`16
`
`there be copying of the step -- of the obvious step,
`
`16:
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`51
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`10
`
`11
`
`12
`
`13
`
`that would be the step that was needed to determine
`
`this?
`
`Q. Did you consider any evidence of commercial
`
`success in rendering your opinion of obviousness?
`
`A. Again, it is very difficult to use commercial
`
`success for software products of this sort to ascertain
`
`obviousness in that the commercial success —— that is
`
`not true in other patent areas, but in this particular
`
`area, again,
`
`the market share of a particular software
`
`program may very wildly on factors that are not related
`
`to the innovation.
`
`Q. Did you consider any evidence of initial
`
`14
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`15
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`16
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`17
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`15:
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`36:
`
`32
`
`skepticism in this case?
`
`A. Yes, but I
`
`think the important point is it would
`
`be skepticism of developers, not traders or end users.
`
`I may be getting ahead of myself on you a little
`
`bit but I have seen a lot rebuttal arguments that it is
`
`the opinion of people that are users that matters, but
`
`it is not. There will be no skepticism whatsoever among
`
`software engineers that you could combine single—action
`
`with any visual display to get a faster result.
`
`Q.
`
`In rendering your opinion, you did not take into
`
`account the file history, correct?
`
`:36
`
`:35
`
`25
`
`A. No.
`
`0014
`0014
`
`

`

`2656
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`File history is not specifically relevant to my
`
`inquiry into obviousness.
`
`The question before me as an expert looking at
`
`obviousness is: What did the practitioners know what
`
`was the prior art, and how would they combine it?
`
`I was asked to ascertain that independently of
`
`what other people who may have been looking at similar
`
`related issues did.
`
`Q. Could you play RD14, please.
`
`MR. LOMBARDI: Could we have a page and line
`
`reference, please?
`
`"Q.
`
`So you didn‘t take the
`
`16:
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`37:
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`21
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`22
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`23
`
`24
`
`file history into
`
`consideration at all in
`
`rendering your opinion;
`
`is that right?
`
`"A.
`
`No,
`
`I did not take the
`
`file history into
`
`consideration."
`
`MR. LOMBARDI:
`
`Can I have a page and line
`
`number?
`
`MR. GANNON: That is Page 125,
`
`lines 3
`
`16
`
`:37:
`
`32
`
`25
`
`through 4.
`
`0015
`0015
`
`

`

`2657
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`:37:
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`38
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`-45
`
`BY MR. GANNON:
`
`16:
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`37:
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`3B
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`15:
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`37:
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`41
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`04
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`:38:
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`08
`
`10
`
`ll
`
`12
`
`13
`
`Q.
`
`Now, Mr. Dezmelyk,
`
`there was testimony today
`
`about the TSE manuals, correct?
`
`A. Yes.
`
`Q.
`
`And in particular,
`
`there was a discussion about
`
`the scroll mode;
`
`is that right?
`
`A. Yes.
`
`Q.
`
`And I believe you testified that in the scroll
`
`mode,
`
`the prices were static, correct?
`
`A.
`
`In scroll mode,
`
`the price axis is static.
`
`Q.
`
`Isn't it true that the TSE manuals don't show
`
`entering orders in the scroll mode?
`
`they don‘t say you can't,
`
`I am
`
`16:
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`38:
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`:43
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`23
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`24
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`16:
`
`3B:
`
`43
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`25
`
`A.
`
`I don't think —-
`
`16:
`
`38:
`
`15
`
`14
`
`not sure there is an example in the order entry page
`
`15
`
`related to scroll mode.
`
`Q.
`
`So,
`
`is it fair to say the manuals do not show
`
`entering orders in the scroll mode?
`
`A.
`
`I don't recall at the moment an example of where
`
`they do, but it is clear that in order for them to be
`
`functional,
`
`they would do so.
`
`Q. But you didn't see any explicit reference to
`
`entering orders in the scroll mode in the manuals?
`
`A. Not that I can recall at the moment.
`
`I would
`
`have to look at the manual.
`
`Q. All right.
`
`0016
`0016
`
`

`

`2658
`
`.>>>>> .16
`
`:38:
`
`43
`
`Mr. Dezmelyk, are you aware of a user at any time
`
`16:
`
`38
`
`:43
`
`16
`
`:38:
`
`52
`
`16:
`
`38
`
`:54
`
`16:
`
`38:
`
`SB
`
`16
`
`:39
`
`:00
`
`16
`
`:39:
`
`01
`
`16:
`
`39:
`
`03
`
`16:
`
`39:
`
`09
`
`16
`
`:39:
`
`09
`
`16
`
`:39:
`
`09
`
`16:
`
`39:
`
`14
`
`16
`
`:39:
`
`14
`
`16
`
`17
`
`10
`
`ll
`
`12
`
`13
`
`actually entering orders in the TSE system in scroll
`
`mode?
`
`A. No, although it is possible that Mr. Kida is.
`
`I
`
`am not immediately aware of that.
`
`Q.
`
`You can't name --
`
`A.
`
`I have never observed it.
`
`Q.
`
`You don't know of a specific user that has
`
`actually entered an order in the scroll mode, correct?
`
`A. No.
`
`~-_
`
`Q.
`
`That is a yes? We have a double negative there.
`
`A. Okay.
`
`I have never observed the operation of the TSE
`
`:39:
`
`16
`
`:39:
`
`22
`
`16:
`
`39:
`
`28
`
`16
`
`:39:
`
`28
`
`16
`
`:39
`
`:30
`
`16
`
`:39:
`
`33
`
`16:
`
`39:
`
`36
`
`16
`
`:39
`
`:38
`
`16:
`
`39:
`
`39
`
`16
`
`:39:
`
`41
`
`16:
`
`39:
`
`46
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`2O
`
`21
`
`22
`
`23
`
`24
`
`system -— because this is from 1998,
`
`so I have never
`
`observed any user operate that system.
`
`Q.
`
`So you are not aware of any user that has
`
`actually entered an order in scroll mode, are you?
`
`A. No,
`
`I am not.
`
`Q.
`
`Now, you agree that the TSE system did not have
`
`single—action order entry, right?
`
`A. Right.
`
`The system by itself does not have
`
`single—action order entry as defined by the Court.
`
`Q.
`
`And you know, don't you,
`
`that the TSE system
`
`:39:
`
`49
`
`25
`
`doesn‘t have single—action even today, correct?
`
`0017
`0017
`
`

`

`2659
`
`:39:
`
`53
`
`:39:
`
`57
`
`16
`
`:39:
`
`58
`
`16
`
`:40
`
`:06
`
`16:
`
`40:
`
`08
`
`16
`
`:40:
`
`08
`
`16
`
`:40:
`
`ll
`
`16:
`
`40:
`
`14
`
`16
`
`:40:
`
`17
`
`16:
`
`40:
`
`17
`
`16
`
`:40:
`
`24
`
`16:
`
`40:
`
`24
`
`16:
`
`40:
`
`26
`
`40:
`
`28
`
`10
`
`11
`
`12
`
`13
`
`A. Well,
`
`I am not familiar with the system today but
`
`it may be that they don't have that.
`
`Q. Are you aware of the TSE system actually using
`
`static in combination with single-action order entry
`
`today?
`
`A. No, but that doesn‘t effect the analysis of
`
`whether it would be obvious to do it because it may well
`
`be that,
`
`in the market circumstance they are in,
`
`that is
`
`what people want.
`
`Q. But you are not aware of that actually being the
`
`case, are you?
`
`A. Well, what
`
`I just said -- I am aware of what I
`
`just said.
`
`I think your question is a little tangled
`
`I 16:
`
`16:
`
`40:
`
`33
`
`16:
`
`40
`
`:33
`
`16
`
`:40:
`
`35
`
`16:
`
`40
`
`:35
`
`16
`
`:40:
`
`35
`
`16:
`
`40:
`
`43
`
`16:
`
`40:
`
`51
`
`16:
`
`40:
`
`51
`
`16:
`
`40:
`
`51
`
`16:
`
`40
`
`:55
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`there.
`
`I don't know at this time whether TSE had
`
`single—action or not, but it doesn't effect my analysis.
`
`Q.
`
`Thank you, Mr. Dezmelyk.
`
`REDIRECT EXAMINATION
`
`BY MR. LOMBARDI:
`
`Q. Mr. Dezmelyk, could you please explain to the
`
`jury why you haven't seen the 1998 TSE system in
`
`operation?
`
`A. Well, 1998 was a long time ago.
`
`To my knowledge
`
`there is no videos of it; certainly I wasn‘t
`
`in Japan in
`
`:40:
`
`59
`
`25
`
`1998 looking at it. And so there is no easy way now to
`
`0018
`0018
`
`

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