TRADING TECH EXHIBIT 2064
`TD Ameritrade v. Trading Technologies
`CBM2014-00133
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`centering command is received.” Trading Techs. Int’l, Inc, V. eSpeed, Inc., 2006 US. Dist.
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`LEXIS 80153, at 11 (ND. Ill. Oct. 31, 2006), submitted in an IDS filed on May 20, 2008. The
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`court applied this construction as requiring a mode or condition in which there is no possibility
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`that the price levels change positions automatically. (The same construction was applied to
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`related US. Patent No. 6,766,304 or “the ‘304 patent”). As previously advised, the Federal
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`Circuit affirmed the lower court’s construction.
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`The intrinsic record has been fiarther developed since the issuance of the ‘132 and ‘304
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`patents. In the present case, as in the ‘382 patent, neither Examiner nor Applicant limited the
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`term “static” to the narrow meaning adopted by the courts in connection with the ‘ 132 and ‘304
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`patents. To the contrary, it has been understood, as confirmed by various discussions with the
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`Examiner throughout the examination of this family of cases, including the present application,
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`that a “static” price axis may include a mode or condition in which there is a possibility that the
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`price levels change positions automatically (e.g., as reflected for example in the Interview
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`summary of 5/20/2008 in the ‘382 patent). This understanding is founded on the specification,
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`which states that the price levels “do not normally change positions unless a recentering
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`command is received,” and provides a visual comparison of the display between a time 1 (FIG.
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`3) and a subsequent time 2 (FIG. 4), which by itself demonstrates the operation of a static price
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`axis : “[i]n comparing FIGS. 3 and 4, it can be seen that the price column remained static, but the
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`corresponding bids and asks rose up the price column.” Additionally, throughout the extensive
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`file history of this and related applications, including a thorough reexamination confirming
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`patentability of the ‘132 and ‘304 patents, Applicant has not disclaimed or disavowed (e.g., to
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`distinguish over cited art or for any other reason) a “static” price axis in which there is a
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`possibility that the price levels change positions automatically. Indeed, the fact that a price axis
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`can be re-centered is indicative that the price axis is static, but a static price axis is not defined by
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`how it is re-centered.
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`Accordingly, it is clear that in the present case, as in the ‘382 patent, automatic re-
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`centering of a static price axis is merely an additional feature not precluded by the term “static.”
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`This is illustrated by US. Pat. No. 7,685,055 (the ‘055 patent), which is a continuation-in-part of
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`the ‘ 132 patent, filed well before the ‘ 132 patent issued as a patent and was litigated, and
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`examined by the same Examiner as in this case. The ‘055 patent disclosed innovations that build
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`upon the static price axis originally disclosed in the ‘ 132 patent. Specifically, the ‘055 patent
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`shows and claims automatic re-centering (or repositioning) of a “static” price axis. The fact that
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`the static price axis can be automatically re-centered (or repositioned), as claimed in the ‘055
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`patent, demonstrates that “static” does not preclude automatic re-centering.
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`Date: July 19, 2010
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`By:
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`Respectfully submitted,
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`MCDONNELL BOEHNEN
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`HULBERT AND BERGHOFF LLP
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`/Daniel P. Williams
`Daniel P. Williams
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`Registration No. 58,704
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