UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
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`PETITIONERS
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`v.
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`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Case CBM2014-00133
`Patent No. 7,676,411
`____________________
`
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,676,411
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`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
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`- 1 -
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`TDA 1027
`TD Ameritrade v. TT
`CBM2014-00133
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`
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
`
`PETITIONERS
`
`v.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`____________________
`
`Case CBM2014-00133
`Patent No. 7,676,411
`____________________
`
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,676,411
`
`
`
`
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`
`
`
`
`
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`- 1 -
`
`TDA 1027
`TD Ameritrade v. TT
`CBM2014-00133
`
`
`
`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 7,676,411, to
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`Gary Allan Kemp, II, filed October 25, 2006 and issued March 9, 2010, (the “’411
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`Patent”). I understand that the ’411 Patent is currently assigned to Trading
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`Technologies International, Inc. (“TT”).
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`2.
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`I have reviewed the following materials in making this declaration:
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`a. The ’411 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. My previous declaration (Exh. 1019).
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`e. 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. 1007).
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`f. U.S. Patent No. 5,136,501 to Silverman et al. (“Silverman”), Exhibit
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`1005.
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`- 2 -
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`g. U.S. Patent No. 5,375,055 to Togher, et al. (“Togher”), Exhibit 1005.
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`3.
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`Any generic computer could be programmed to perform claim 1 using
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`generic GUI tools and programming languages. It would then perform the
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`repeated operations of receiving data, calculating where to display each data
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`element, receiving user input, and sending orders to the electronic exchange, i.e.,
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`the basic functions of a computer. Aside from the requirements to use a
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`“computing device” and other generic computer components, claim 1 could be
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`performed in the human mind or using a pen-and-paper. A person could receive
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`updated market information and plot the data along a price axis drawn onto a piece
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`of paper or a white board, updating it as new market information is received. This
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`price axis would be static unless it was erased and redrawn (or redrawn on a new
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`piece of paper). The person could then point to an area on the hand-drawn graph to
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`indicate the desired price, and then that person (or an observer) could place an
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`order (e.g., over the telephone to a broker) for a default quantity of the commodity
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`at the indicated price.
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`4.
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`The six data-displaying steps of claim 1 (displaying a bid display
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`region, displaying an ask display region, dynamically displaying the highest bid,
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`updating the highest bid when new data is received, dynamically displaying the
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`lowest ask, updatating the lowest ask when new data is received) recite
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`- 3 -
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`conventional data-plotting and updating of the plot for the two data points, the
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`lowest ask and the highest bid. When updated data is replotted, it is typically
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`moved “relative to the axis.” This is shown in TSE, which updates its displays
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`(which include the lowest bid and the highest ask) as new data comes in. TSE at
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`0091, 0107. These steps (aside from the recitation of a generic computing device)
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`could be performed on pen and paper, although it would be easier on a white board
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`because the old data could more easily be erased. Silverman’s FIG. 4 (Ex. 1003)
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`shows a snapshot of a plot displaying the lowest ask (offer) and the highest bid, in
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`addition to other pending orders.
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`5.
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`I understand that TT asserts moving bid and ask indicators relative to
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`a price axis is “commensurate in scope” to a static price axis. POR at 21.
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`Assuming that a static price axis is “a price column where prices do not normally
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`change positions unless a re-centering command is received,” which is the Board’s
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`adopted definition in the proceeding involving the ’132 patent, I disagree with TT.
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`Under the broadest reasonable interpretation, moving the bid and ask relative to the
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`price axis is broader than having a static price axis. Although it encompasses a
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`static price axis, there could also be relative movement between the bid/ask and the
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`axis if the price axis was also moving. Therefore, under its broadest reasonable
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`interpretation, claim 1 allows for repositioning of the price axis, so long as the bid
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`and ask are moved relative to the axis.
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`- 4 -
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`6.
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`A static price axis is nothing new. If I were to plot data on graph
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`paper or a white board, the price axis would be static until I replotted the data (the
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`same or updated data) based on a repositioned axis. Likewise, Silverman plots
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`bids and offers on paper to illustrate a book of orders. Silverman FIG. 4 (Ex.
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`1005). TSE’s uncompressed display uses an electronic static price axis. See TSE at
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`0107. TSE’s scroll mode also has a static price axis, even if the screen is
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`uncompressed. See TSE at 0110 (describing scroll up, scroll down, and Home
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`button which re-centers and transitions back to the basic board screen); 0115 (the
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`price display position does not automatically change in scroll mode).
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`7.
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`The “inside market” recited in claim 1 is a common term in the art
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`meaning the highest bid and the lowest ask.
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`8.
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`Although TSE does not expressly teach a single-action order entry,
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`traders using TSE would have been aggravated if the price changed under their
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`mouse, causing the wrong price to be entered and displayed in the send-order
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`dialogue, and forcing them to edit their trades before sending to the exchange.
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`9.
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` The motivation to provide single-action order entry is to reduce the
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`amount of time it takes to place an order in a fast-moving market.
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`10. FIG. 2 of the ’411 patent includes two price axes, one for bids
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`(labeled 203, BidPrc) and one for asks (labeled 204, AskPrc).
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`- 5 -
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`11. The portion of Orc Trader shown by TT at page 35 of the POR
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`appears to practice all of claim 1 with the exception of plotting the highest bid and
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`lowest ask along a price axis. Although it is fuzzy, I believe it displays the current
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`inside market (highest bid and lowest ask) for a series of different option contracts
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`on the DAX (i.e., symbol ODAX). The DAX (Deutscher Aktienindex) is a
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`German stock market index consisting of 30 large German companies. In that
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`respect, the DAX is similar to the Dow Jones Industrial Average, which is an index
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`of 30 large companies traded on the New York Stock Exchange.
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`12. 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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`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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`- 6 -
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`13.
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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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`14.
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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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`Executed this 29th day of May 2015 in Sunnyvale, CA.
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`1”/4 g
`
`Kendyl A. Roman
`
`
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