`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`
`
`
`
`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
`
`____________________
`
`
`
`PATENT NO. 7,676,411
`
`____________________
`
`
`
`DECLARATION OF DAVID RHO
`
`IN SUPPORT OF PETITION FOR
`
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,676,411
`
`- 1 -
`
`TDA 1023
`CBM of U.S. Patent No. 7,676,411
`
`
`
`I, David Rho declare as follows:
`
`
`
`1.
`
`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
`
`behalf of Petitioners, TD Ameritrade Holding Corp., TD Ameritrade Inc., TD
`
`Ameritrade Online Holding Corp., for the above-captioned covered business
`
`method review proceeding. I understand that this proceeding involves United
`
`States Patent 7,676,411, entitled “Click based trading with intuitive grid display of
`
`market depth,” by Gary Allan Kemp, II, et al., filed October 25, 2006, issued
`
`March 9, 2010, (the “’411 Patent”). I understand that the ’411 Patent is currently
`
`assigned to Trading Technologies International, Inc. (“TTI”).
`
`2.
`
`I understand the ’411 patent claims benefit from U.S. provisional
`
`application 60/186,322. For purposes of the covered business method review, I
`
`assume the earliest possible priority date of the ’411 patent is the March 2, 2000
`
`filing date of U.S. provisional application 60/186,322.
`
`3.
`
`I have reviewed and am familiar with the specification of the ’411
`
`Patent. I understand that the ’411 patent has been provided as Exhibit 1001. I will
`
`cite to the specification using the following format (’411 patent, 1:1-10). This
`
`example citation points to the ’411 patent specification at column 1, lines 1-10.
`
`- 2 -
`
`
`
`4.
`
`I have reviewed and am familiar with the file history of the ’411 Patent.
`
`I understand that the file history has been provided as Exhibit 1002.
`
`5.
`
`I have also reviewed and am familiar with the following prior art used
`
`in the Petition for Covered Business Method Review of the ’411 Patent:
`
` U.S. Patent No. 5,077,665 to Silverman et al., (“Silverman”), Exhibit
`
`1003;
`
` U.S. Patent No. 5,297,031 to Gutterman et al., (“Gutterman”), Exhibit
`
`1004;
`
` U.S. Patent No. 5,375,055 to Togher et al., (“Togher”), Exhibit 1005;
`
` A certified translation of “Futures/Option Purchasing System Trading
`
`Terminal Operation Guide” (“TSE”); I understand that the original
`
`Japanese language document was provided as Exhibit 1006, the
`
`certified translation provided as Exhibit 1007, and the certification of
`
`translation provided as Exhibit 1008;
`
` U.S. Patent No. 6,408,282 to Buist, (“Buist”), Exhibit 1026.
`
`6. A complete listing of additional materials considered and relied upon in
`
`preparation of my declaration is provided as Exhibit 1025 to this declaration. I
`
`- 3 -
`
`
`
`have relied on these materials to varying degrees. Citations to these materials that
`
`appear below are meant to be exemplary, but not exhaustive.
`
`7.
`
`The ’411 Patent describes click based trading with intuitive grid
`
`display of market depth. (’411 Patent, Title.) I am familiar with the technology
`
`described in the ’411 Patent as of the earliest possible priority date of the ’411
`
`Patent (March 2, 2000).
`
`8.
`
`I have been asked to provide my technical review, analysis, insights
`
`and opinions regarding the ’411 Patent and the above-noted references that form
`
`the basis for the grounds of unpatentability set forth in the petition for Covered
`
`Business Method Review of the ’411 Patent.
`
`I.
`
`QUALIFICATIONS
`
`1. See my Curriculum Vitae, attached as Exhibit 1024, for a listing of my
`
`qualifications.
`
`2. My expertise qualifies me to do the type of analysis required in this
`
`case.
`
`3.
`
`I have graduated from the Massachusetts Institute of Technology (MIT)
`
`in 1992 with a Bachelor's Degree in Computer Science with Electrical
`
`Engineering.
`
`- 4 -
`
`
`
`4.
`
`In the 1990's I worked as a Manager of an Educational Computing
`
`Facility at MIT, where I created a website having a graphical user interface (GUI)
`
`front end and a database backend, for receiving, storing, and displaying data.
`
`5.
`
` From November 11, 1999 to March, 2001, I worked at marchFIRST in
`
`New York, New York as a Consultant and Manager. At marchFIRST, I worked on
`
`trading applications, such as implementing a distributed messaging system for
`
`fixed income products for a major market data provider. I have also designed a
`
`trading system for a pan-European stock exchange.
`
`6. From March 2001 I have been working as a partner at MMG Partners in
`
`New York, New York. At MMG Partners, I have engaged in numerous trading
`
`related projects. I designed the front and back office system for four independent
`
`broker dealers, determined product offering gaps for a trading system and market
`
`data firm for a client as opposed the client's competitions, and advised numerous
`
`sell-side and buy-side companies of ways to reduce their market data spending.
`
`7. While at MMG Partners, I have advised a broker/dealer on which order
`
`management system would meet their business requirements.
`
`8. Also while at MMG Partners, I have performed due diligence on the
`
`NYMEX futures exchange with a large private equity firm and a venture capital
`
`firm. I analyzed the trading system from a functional and technical perspective.
`
`- 5 -
`
`
`
`9. Also while at MMG Partners, I worked on an IT benchmarking study
`
`for Deutsche Bourse. This study involved analyzing benchmarks from Deutsche
`
`Bourse, Deutsche Bourse Clearing, CBOT, CBOE, CME, Philadelphia Stock
`
`Exchange, Swiss Stock Exchange, OMX, Milan Stock Exchange, CME Clearing
`
`and OCC. As part of this study I normalized benchmark results across disparate
`
`trading system platforms and architectures.
`
`10. While at MMG Partners, I have also advised Dr. Moses Ma, who was
`
`engaged as an expert witness in a lawsuit involving U.S. Patent No. 6,618,707. The
`
`nature of my advisement was research and analysis regarding refuting invalidity
`
`claims and proving infringement.
`
`11. My Curriculum Vitae is attached as Exhibit 1021, which contains
`
`further details on my education, experience, publications, and other qualifications
`
`to render an expert opinion. My work on this case is being billed at a rate of
`
`$500.00 per hour, with reimbursement for actual expenses. My compensation is
`
`not contingent upon the outcome of this covered business method review or the
`
`litigation involving the ’411 Patent.
`
`- 6 -
`
`
`
`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`12. I understand that, during a covered business method review, claims are
`
`to be given their broadest reasonable construction in light of the specification as
`
`would be read by a person of ordinary skill in the relevant art.
`
`I. MY UNDERSTANDING OF OBVIOUSNESS
`
`13. I am not a lawyer and will not provide any legal opinions. Although I
`
`am not a lawyer, I have been advised certain legal standards are to be applied by
`
`technical experts in forming opinions regarding meaning and validity of patent
`
`claims.
`
`14. I understand that a patent claim is invalid if the claimed invention
`
`would have been obvious to a person of ordinary skill in the field at the time of the
`
`purported invention, which is often considered the time the application was filed.
`
`This means that even if all of the requirements of the claim cannot be found in a
`
`single prior art reference that would anticipate the claim, the claim can still be
`
`invalid.
`
`15. As part of this inquiry, I have been asked to consider the level of
`
`ordinary skill in the field that someone would have had at the time the claimed
`
`invention was made. In deciding the level of ordinary skill, I considered the
`
`following:
`
`- 7 -
`
`
`
` the levels of education and experience of persons working in the field;
`
` the types of problems encountered in the field; and
`
` the sophistication of the technology.
`
`16. To obtain a patent, a claimed invention must have, as of the priority
`
`date, been nonobvious in view of the prior art in the field. I understand that an
`
`invention is obvious when the differences between the subject matter sought to be
`
`patented and the prior art are such that the subject matter as a whole would have
`
`been obvious at the time the invention was made to a person having ordinary skill
`
`in the art.
`
`17. I understand that to prove that prior art or a combination of prior art
`
`renders a patent obvious, it is necessary to (1) identify the particular references
`
`that, singly or in combination, make the patent obvious; (2) specifically identify
`
`which elements of the patent claim appear in each of the asserted references; and
`
`(3) explain how the prior art references could have been combined in order to
`
`create the inventions claimed in the asserted claim.
`
`18. I understand that certain objective indicia can be important evidence
`
`regarding whether a patent is obvious or nonobvious. Such indicia include:
`
`commercial success of products covered by the patent claims; a long-felt need for
`
`the invention; failed attempts by others to make the invention; copying of the
`
`- 8 -
`
`
`
`invention by others in the field; unexpected results achieved by the invention as
`
`compared to the closest prior art; praise of the invention by the infringer or others
`
`in the field; the taking of licenses under the patent by others; expressions of
`
`surprise by experts and those skilled in the art at the making of the invention; and
`
`the patentee proceeded contrary to the accepted wisdom of the prior art.
`
`III. LEVEL OF ORDINARY SKILL IN THE ART
`19. Based on the considerations I listed above, I conclude that one of
`
`ordinary skill in the art at the time of the alleged invention (i.e., in the March 2,
`
`2000 timeframe) would have had the equivalent of a Bachelor’s degree or higher in
`
`Computer Science and at least two years of work experience designing graphical
`
`user interfaces, and direct or indirect experience with trading or related systems.
`
`IV. LEVEL OF ORDINARY SKILL IN THE ART
`A. Claim Construction
`20. As part of my analysis, I have construed all claim terms in light of the
`
`specification of the ’411 Patent.
`
`V.
`
`SILVERMAN, GUTTERMAN AND TOGHER
`A. Overview
`21. Silverman, like the ’132 Patent, is directed to a “computerized
`
`exchange” for “trading various trading instruments.” (Silverman, 4:57-5:3.) FIG. 1
`
`of Silverman (reproduced below) depicts a functional block diagram of a trading
`
`- 9 -
`
`
`
`system. As illustrated in FIG. 1, Silverman discloses a host or central system 20.
`
`The host system executes trades by matching active bids and offers sent from client
`
`sites. (Silverman, 2:65-3:8, 5:7-11, 5:32-46.) The keystations 24, located at the
`
`client sites and connected to the central system via a network, are used to transmit
`
`bids and offers for the various trading instruments to the central system.
`
`(Silverman, 2:65-3:14, 5:20-32.) A keystation 24 is utilized by a trader.
`
`
`
`22. The host system 20 also maintains a “host book data base comprising
`
`all of the active bids and offers in the system by trading instrument.” (Silverman,
`
`2:66-67.) As explained by Silverman, the host book “contains detailed information
`
`from each client site on the particulars of each bid or offer.” (Silverman, 8:38-40.)
`
`- 10 -
`
`
`
`Thus, the host book includes the market depth (the current bid and ask prices and
`
`quantities in the market) for a commodity. Similarly, each keystation 24 maintains
`
`a keystation book for each instrument being actively traded. (Silverman, 10:15-25,
`
`10:56-61.) The information used in the keystation book is used “to generate
`
`displays at the keystations.” (Silverman, 8:17-18.) FIG. 5 of Silverman
`
`(reproduced below with annotations) illustrates a typical keystation book.
`
`
`23. The keystation book is “a subset of the system or central station or host
`
`book ….” (Silverman, 8:12-14.) Keystation books are initially received from and
`
`continuously updated by the central system 20. (Silverman, 3:46-4:10, 5:7-19,
`
`5:37-49 (“real-time updates”), 7:56-8:61, 10:15-25.) The depth of display for a
`
`commodity on a keystation is controlled by the host computer that determines the
`
`- 11 -
`
`
`
`maximum possible display depth for the keystation book and the keystation which
`
`may further control the information displayed. (Silverman, 8:21-35.) A person
`
`having ordinary skill in the art at the time of the invention (“PHOSITA”) would
`
`recognize that if the keystation can display a subset of the display depth, by
`
`definition a subset can be the same as the entire set, which would include the entire
`
`market depth for a commodity on the display.
`
`24. In Silverman, a trader places an order “through data entry using a
`
`conventional keyboard, pointing device such as a mouse or any other conventional
`
`data entry tool.” (Silverman, 5:29-32.) Silverman does not provide any further
`
`details on order entry.
`
`25. Gutterman provides a graphical user interface (“GUI”) displaying order
`
`icons representing bids or asks at a specific price level. (Gutterman, FIG. 2b
`
`(reproduced below)) “Buy orders [bids] are represented in the deck pane as blue
`
`square shapes, and sell orders [asks] are represented as red circles, both of which
`
`include indications of the quantities of the orders represented.” (Gutterman, 12:21-
`
`24.)
`
`- 12 -
`
`
`
`
`
`26. Each order icon in Gutterman is “active.” That is, when the user selects
`
`the order icon, the system performs one or more actions – such as populating an
`
`electronic message with an “order’s quantity, price and timestamp.” (Gutterman,
`
`13:29-31.) A trader may immediately transmit this electronic message to another
`
`party by pressing another “active” button – the “SEND” button. (Gutterman,
`
`13:29-43.) (“In periods of heavy market activity….”) As described in the
`
`specification of the ’132 Patent, any action by a user within a short period of time,
`
`whether comprising one or more clicks of a mouse button or other input device
`
`qualifies as a “single action.” Under this definition, Gutterman’s disclosure of
`
`selecting an order icon corresponds to a single action. And, Gutterman’s disclosure
`
`of a user making two selections (selecting the order icon and the “SEND” button)
`
`within a short period of time is a single action.
`
`- 13 -
`
`
`
`27. As described in further detail below, a PHOSITA would have been
`
`motivated to use the “active” order icons of Gutterman in the keystation display of
`
`Silverman to permit a trader to place orders. FIG. A includes my edits of FIG. 1 of
`
`Silverman to add the order icon interface of Gutterman to the keystation display of
`
`Silverman.
`
`
`
`FIGURE A
`
`- 14 -
`
`
`
`28. The combination of Silverman and Gutterman fails to disclose selecting
`
`an area of the GUI through a single action “to both set a price for the trade order
`
`and send the trade order having a default quantity to the electronic exchange.” The
`
`use of default values and automatic entry of information (e.g., price) was a well-
`
`known technique in the field of GUIs well before the earliest possible priority date
`
`of the ’411 Patent. Togher describes such a system and method that is in the same
`
`field as Silverman and Gutterman.
`
`29. Togher discloses an “electronic brokerage system having a
`
`communication network connecting traders dealing with financial instruments.”
`
`(Togher, 1:7-10.) The “electronic brokerage system facilitates the buying and
`
`selling of large blocks of foreign currency by traders.” (Togher, 5:4-7.) Togher
`
`discloses that a trader can establish default trade values, such as a default trade
`
`quantity, before he/she begins trading: “As shown in FIG. 4, each trader can call up
`
`a ‘Trader Profile’ screen 70 … to establish or modify his personal default values
`
`for normal and maximum trading size ….” (Togher, 12:7-15, FIG. 4; see also id.,
`
`8:65-9:10, 11:20-25.) Establishing the default values allows a trader to “quickly
`
`and accurately respond to a new Dealable Bid or offer price by merely activating a
`
`Buy button 34 or a Sell button 36, respectively on the screen, assuming that the
`
`display is touch sensitive or is provided with a ‘mouse’ or other pointing device.”
`
`(Togher, 9:1-10; 11:33-41.)
`
`- 15 -
`
`
`
`B. Claim 9
`30. Claim 9 recites, “dynamically displaying an entered order indicator at
`
`a graphical location aligned with a price level of the plurality of price levels,
`
`wherein the entered order indicator represents a user’s trade order working at the
`
`price level aligned with the entered order indicator.”
`
`31. As discussed above, the combination GUI of Silverman, Gutterman,
`
`and Togher displays market information to a trader at a workstation, and accepts
`
`the trader’s orders that are placed in response to observing the market. In the
`
`combination GUI, the order icons would represent the outstanding orders in the
`
`overall market for a given commodity, not just the orders in a single broker’s deck.
`
`However, it would have been obvious to a PHOSITA to additionally indicate on
`
`the display which of the outstanding orders were made by the particular trader and
`
`the status of those orders so that the trader could easily recognize and track his/her
`
`orders.
`
`- 16 -
`
`
`
`32. Gutterman supports this position by suggesting that “[o]ne of the skills
`
`of a broker is in knowing his deck [i.e., working orders].”1 (Gutterman, 3:14.)
`
`Gutterman appreciated that it was difficult for a trader to remember all of his/her
`
`working orders and the status of those orders, especially in times of heavy market
`
`activity. (See Gutterman, 3:14-24 (“Occasionally, the decks are as much as an inch
`
`thick and require great memory skill and anticipatory planning.”) Gutterman
`
`sought to alleviate this burden by “allow[ing] the broker to manage … orders more
`
`efficiently” by rapidly organizing and presenting this information on a display in a
`
`manner that can be quickly observed and easily understood. (Gutterman, 6:51-55,
`
`see also id, 6:37-40.) As described above, Gutterman displayed the order
`
`information against a price axis to help achieve this goal. (Gutterman, FIG. 2b.)
`
`33. U.S. Patent No. 6,408,282 to Buist, which was filed on April 15, 1999,
`
`provides further evidence that it would have been obvious to a PHOSITA to
`
`additionally indicate on the display which of the outstanding orders were made by
`
`the particular trader and the status of those orders. FIG. 6, reproduced below,
`
`
`
`1 A broker is a type of trader. For a broker, “the deck is a stack of orders that
`
`are to be executed by the broker.” (Gutterman, 3:14.) In other words, the broker’s
`
`deck represents his/her “working orders.”
`
`- 17 -
`
`
`
`illustrates “a visual quote and order book display.” (Buist, 12:8-10.) The column
`
`labeled 684 is a price column. (Buist, 12:51-52.) On either side of the price column
`
`has two columns labeled “Your Orders.” These columns are disposed on either side
`
`of a price column 684. (Buist, 12:51-54.) “The ‘Limit Qty.’ and ‘AON Qty.’
`
`columns list the size of orders at each price level posted into the system by other
`
`users.” (Buist, 12:54-56.) And in support of the position taken above, Buist also
`
`teaches that the GUI also includes the “Your Orders [column showing] the user’s
`
`order in the stock.” (Buist, 12:56-59, emphasis added.) Thus Buist’s GUI displays
`
`the individual user’s market positions in addition to the positions in the market that
`
`were taken by others. And, Buist displays the individual user’s market positions in
`
`relation to the price column.
`
`- 18 -
`
`
`
`
`
`34. Based on Gutterman’s teachings and suggestions and the additional
`
`evidence provided by Buist, a PHOSITA would also have appreciated the
`
`importance of indicating on the display the trader’s orders and the status of those
`
`orders. Additionally, a PHOSITA would have understood that plotting the trader’s
`
`working orders against the price axis would have allowed the trader to quickly
`
`observe the prices that his/her orders were working at or executed at.
`
`C. Claim 10
`35. The GUI of Silverman, Gutterman, and Togher “cancel[s] the user’s
`
`trade order represented by the entered order indicator in response to a single
`
`- 19 -
`
`
`
`action of the user input device with the cursor of the user input device positioned
`
`over the entered order indicator.” As discussed, Gutterman teaches providing an
`
`instruction to the GUI by selecting an area/location in the bid or ask display region
`
`to perform an action, e.g., enter an order. (Gutterman, 13:29-33.) Togher discloses
`
`the ability to cancel an order. (Togher, 11:48-51.)
`
`36. It would have been obvious to a PHOSITA to implement Togher’s
`
`order cancel feature in the GUI of Silverman, Gutterman, and Togher to allow a
`
`trader to cancel an outstanding order that is displayed by the GUI. Canceling
`
`orders is a well-known concept in the field of commodities trading. Moreover, a
`
`PHOSITA would have understood that a trader’s ability to quickly and accurately
`
`exit market positions when he/she senses that the market is turning adverse to those
`
`positions is of the utmost importance to a high-speed, high-frequency trader.
`
`VI. TSE AND TOGHER.
`A. Overview
`37. TSE is a “Futures/Options Purchase System” that “handles the trades in
`
`the [Bond Futures Market, Bond Future Option Market, Index Futures Market,
`
`Index Option Market, and Stock Option Market] with different commodities
`
`characteristics.” (TSE, 4-1.) As explained by TSE, “[e]ach [of the]
`
`aforementioned market[s] may have a different price display, and input unit, etc.”
`
`(TSE, 4-1.)
`
`- 20 -
`
`
`
`38. The system of TSE includes a client computer. (TSE, 1-1.) The client
`
`computer “has a number of functions such as various order inputs, resale and buy
`
`back/rights, exercise inputs, various inquiry inputs, various work operation
`
`instructions, and board information inquiries responding to the information display
`
`and the printer control function.” (TSE, 2-5.) “The basic operation of the client is
`
`almost equal to that of the Windows personal computer.” (TSE, 3-1.) The client
`
`“can be operated by the ‘keyboard’ or ‘mouse’.” (TSE, 2-5.) When using the
`
`“mouse”, a “selection can by made by ‘Clicking,’ etc..” (TSE, 3-2.)
`
`39. TSE displays information graphically on a screen and thus has a
`
`graphical user interface (“GUI”) for displaying market information. One example
`
`of the GUI of TSE is the “Board/Quotation” Screen. TSE supports many display
`
`options and modes for presenting market information on the Board/Quotation
`
`Screen. For example, a user can select from 6 types of display forms that divide
`
`the screen to display information for multiple (2, 4 or 6) Security names
`
`simultaneously. (TSE, 7-13 to 14.) In addition, quotation information for 11 or 24
`
`Security names can be displayed with divided configurations of 2 Security names
`
`(11 or 24 quotations) and 3 Security names (11 quotations). (TSE, 7-14.) As
`
`highlighted below, the “Board/Quotation” Screen includes Board Screen portion
`
`and a Quotation Portion.
`
`- 21 -
`
`
`
`(TSE, 7-13.)
`
`
`
`40. Below is an example of a Board Screen when the divided in 2 form is
`
`selected by the trader. The Board Screen includes the ability to turn on scrolling
`
`through the scroll buttons labeled ⑤. A Board Screen “where scrolling is not
`
`being performed is called a ‘Basic Board Screen.’” (TSE, 7-25.) TSE refers to a
`
`Board Screen having scrolling enabled as a “Scroll Screen.” (See TSE, 7-25.) For
`
`purposes of this proceeding, I refer to the Board Screen as having a Basic Board
`
`Screen mode and a Scroll Screen mode.
`
`- 22 -
`
`
`
`
`
`(TSE, 7-17.)
`
`41. When in Basic Board Screen mode, “the board information displayed is
`
`updated so that the ‘Board Display Central Price’ is always displayed in the center
`
`of the board.” (TSE, 7-25.) When in Scroll Screen mode, “the price display
`
`position does not change automatically.” (TSE, 7-25.)
`
`42. A user can transition the Board Screen to Scroll Screen mode by
`
`“click[ing] either the [▲] or [▼] scroll button on the board screen with the
`
`mouse.” (TSE, 7-26.) When in Scroll Screen mode the “H” is displayed in “Red.”
`
`(TSE, 7-20.) A user can transition the Board Screen from Scroll Screen mode to
`
`- 23 -
`
`
`
`Basic Board Screen mode by “[c]lick[ing] on the ‘H’ (Home) button on the board
`
`screen with your mouse.” (TSE, 7-26.)
`
`
`
`43. As explained in TSE, when the Board Screen is in Screen Scroll mode,
`
`“click[ing] either the [▲] or [▼] scroll button on the board screen with the mouse”
`
`moves (scrolls) the screen ‘1 Price’ at a time each time the mouse is clicked.
`
`(TSE, 7-26.)
`
`44. The system of TSE allows a trader to customize the Board/Quotation
`
`Screen based on how they prefer to view the market information while they
`
`actively trade. For example, TSE provides menus to allow the trader to select the
`
`divide form of the Board/Quotation Screen. (TSE, 7-15.) In addition, the trade
`
`- 24 -
`
`
`
`can select either a “non-compressed” price display method or a “compressed” price
`
`display method. In the “non-compressed” price display, “[r]egardless of the
`
`existence of the orders, etc. at the corresponding price, it is a method to display all
`
`prices on the board.” (TSE, 6-3.) In the “compressed” price display, only the price
`
`that satisfies a set of requirements is displayed on the board. (TSE, 6-3.)
`
`B. Claim 9
`45. Claim 9 recites, “dynamically displaying an entered order indicator at
`
`a graphical location aligned with a price level of the plurality of price levels,
`
`wherein the entered order indicator represents a user’s trade order working at the
`
`price level aligned with the entered order indicator.”
`
`46. TSE does not explicitly disclose an entered order indicator as recited in
`
`claims 9, but it would have been obvious to a PHOSITA to indicate on the display
`
`the status of a trader’s orders so that the trader could easily recognize and track
`
`his/her orders.
`
`47. Gutterman provides insightful evidence to support this position by
`
`suggesting that “[o]ne of the skills of a broker is in knowing his deck [i.e., working
`
`- 25 -
`
`
`
`orders].”2 (Gutterman, 3:14.) Gutterman appreciated that it was difficult for a
`
`trader to remember all of his/her working orders and the status of those orders,
`
`especially in times of heavy market activity. (See Gutterman, 3:14-24.)
`
`(“Occasionally, the decks are as much as an inch thick and require great memory
`
`skill and anticipatory planning.”) Gutterman sought to alleviate this burden on the
`
`trader’s memory by “allow[ing] the broker to manage … orders more efficiently”
`
`through rapid organization and presentation of this information on a display in a
`
`manner that could be quickly observed and easily understood. (Gutterman, 6:51-
`
`55, see also id., 6:37-40.) As described above, Gutterman displayed the order
`
`information against a price axis to help achieve this goal. (Gutterman, FIG. 2b.)
`
`48. U.S. Patent No. 6,408,282 to Buist, which was filed on April 15, 1999,
`
`provides further evidence that it would have been obvious to a PHOSITA to
`
`additionally indicate on the display which of the outstanding orders were made by
`
`the particular trader and the status of those orders. FIG. 6, reproduced below,
`
`illustrates “a visual quote and order book display.” (Buist, 12:8-10.) The column
`
`
`
`2 A broker is a type of trader. For a broker, “the deck is a stack of orders that
`
`are to be executed by the broker.” (Gutterman, 3:15-16.) In other words, the
`
`broker’s deck represents his/her “working orders.”
`
`- 26 -
`
`
`
`labeled 684 is a price column. (Buist, 12:51-52.) On either side of the price column
`
`has two columns labeled “Your Orders.” These columns are disposed on either side
`
`of a price column 684. (Buist, 12:52-54.) “The ‘Limit Qty.’ and ‘AON Qty.’
`
`columns list the size of orders at each price level posted into the system by other
`
`users.” (Buist, 12:54-56) And in support of the position taken above, Buist also
`
`teaches that the GUI also includes the “Your Orders [column showing] the user’s
`
`order in a stock.” (Buist, 12:56-59, emphasis added.) Thus Buist’s GUI displays
`
`the individual user’s market positions in addition to the positions in the market that
`
`were taken by others. And, Buist displays the individual user’s market positions in
`
`relation to the price column.
`
`49. Based on the evidence provided by Gutterman and Buist, a PHOSITA
`
`would also have appreciated the importance of indicating on the display the
`
`trader’s orders and the status of those orders., a PHOSITA would also have
`
`appreciated the importance of indicating on the display the trader’s orders and the
`
`status of those orders. Additionally, a PHOSITA would have understood that
`
`plotting the trader’s working orders against the price axis would have allowed the
`
`trader to quickly observe the prices that his/her orders were working at or executed
`
`at.
`
`- 27 -
`
`
`
`C. Claim 10
`50. Claim 10 recites, “canceling the user’s trade order represented by the
`
`entered order indicator in response to a single action of the user input device with
`
`a cursor of the user input device positioned over the entered order indicator.” As
`
`discussed, TSE teaches providing an instruction to the GUI by selecting an
`
`area/location in the bid or ask display region to perform an action, e.g., enter an
`
`order. (TSE, 9-5.) Togher discloses the ability to cancel an order. (Togher, 11:48-
`
`51.)
`
`51. It would have been obvious to a PHOSITA to implement Togher’s
`
`order cancel feature in the GUI of TSE to allow a trader to cancel an outstanding
`
`order that is displayed by the GUI. Canceling orders is a well-known concept in the
`
`field of commodities trading. Moreover, a PHOSITA would have understood that a
`
`trader’s ability to quickly and accurately exit market positions when he/she senses
`
`that the market is turning adverse to those positions is of the utmost importance to
`
`a high-speed, high-frequency trader.
`
`- 28 -
`
`
`
`VII. CONCLUSION
`
`52. The findings and opinions set forth in this declaration are based on my
`
`work and examinations to date. I may continue my examinations. I may also
`
`receive additional documentation and other factual evidence over the course of this
`
`litigation that will allow me to supplement and/or refine my opinions. I reserve the
`
`right to add to, alter, or delete my opinions and my declaration upon discovery of
`
`any additional information. I reserve the right to make such changes as may be
`
`deemed necessary.
`
`53. In signing this declaration, I recognize that the declaration will be filed
`
`as evidence in a contested case before the Patent Trial and Appeal Board of the
`
`United States Patent and Trademark Office. I also recognize that I may be subject
`
`to cross-examination in the case and that cross-examination will take place within
`
`the United States. If cross-examination is required of me, I will appear for cross-
`
`examination within the United States during the time allotted for cross-
`
`examination.
`
`54. I hereby declare that all statements made herein of my own knowledge
`
`are true and that all statements made on information and belief are believed to be
`
`true; and further that these statements were made with the knowledge that willful
`
`- 29 -
`
`
`
`false .EiIEK‘IMCITI'JJSI'ItC'i. EHIFHJV (In: like: tam Wide are: mmi:s:.hab.1::: il‘vjy firm: or iri’l‘flll“BOI‘JI'I'ItiH‘IHh
`
`\'
`
`both, Wihdlifll‘ Shrctihwzrrw ‘;| (101 (:rf”3"‘i[|||;::
`
`l8 0f 1111:: Umilulml St;ill.w;fii‘5 (Twila.
`
`ZEZxcc:lm—.i:ul
`
`I‘ his 19th afluy of'IVflaypw Eil‘) l 4 in] N 4w '51:"01'k; CTilj:j51. 1:“‘-Jw;::w York
`
`'flhllfimm‘h‘ .
`
`‘I
`ziL_W._:‘..‘,
`
`‘
`
`,H.M,,,,,,,,,
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
