Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 1 of 692 PageID #:48666
`
`Exhibit A
`
`
`
`TDA 1028
`TD Ameritrade v. TT
`CBM2014-00135
`
`
`
`i
`
`
`
`Exhibit A
`
`
`
`TDA 1028
`TD Ameritrade v. TT
`CBM2014-00135
`
`
`
`i
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 2 of 692 PageID #:48667
`
`Page 1
`
` IN THE UNITED STATES DISTRICT COURT
` NORTHERN DISTRICT OF ILLINOIS
` EASTERN DIVISION
`TRADING TECHNOLOGIES INTERNATIONAL, ) No. 05 C 4811
`INC., )
` )
` Plaintiff, )
` )
` v. )
` )
`CQG, INC. and CQGT, LLC., ) February 25, 2015
` ) Chicago, Illinois
` ) 10:05 a.m.
` Defendants. ) Trial
` VOLUME 1
` TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE SHARON JOHNSON COLEMAN, and a
` jury
`
`APPEARANCES:
`For the Plaintiff: TRADING TECHNOLOGIES
` INTERNATIONAL, INC.
` 222 South Riverside Drive
` Suite 1100
` Chicago, Illinois 60606
` BY: MR. STEVEN F. BORSAND
` MC DONNELL BOEHNEN HULBERT &
` BERGHOFF LLP
` 300 South Wacker Drive
` Suite 3200
` Chicago, Illinois 60606
` BY: MR. LEIF R. SIGMOND, JR.
` MR. S. RICHARD CARDEN
` MS. JENNIFER M. KURCZ
` MR. JAMES C. GUMINA
` MR. MATTHEW J. SAMPSON
` MR. MICHAEL D. GANNON
` TRACEY DANA McCULLOUGH, CSR, RPR
` Official Court Reporter
` 219 South Dearborn Street
` Room 1426
` Chicago, Illinois 60604
` (312) 435-5570
`
`34d31484-ec2c-4925-acc5-3d1a6f917421
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 3 of 692 PageID #:48668
`
`Page 2
`
`APPEARANCES CONTINUED:
` IRWIN IP
` 1333 Burr Ridge Parkway
` Suite 200
` Burr Ridge, Illinois 60527
` BY: MR. BARRY F. IRWIN
`
`For the Defendants: LOEB & LOEB LLP
` 321 North Clark Street
` Suite 2300
` Chicago, Illinois 60610
` BY: MR. ADAM G. KELLY
` MR. WILLIAM J. VOLLER
` MR. JOHN A. COTIGUALA
` MR. CHRISTOPHER M. SWICKHAMER
` LOEB & LOEB LLP
` 10100 Santa Monica Boulevard
` Suite 2200
` Los Angeles, California 90067
` BY: MS. LAURA A. WYTSMA
` MR. TERRY D. GARNETT
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`34d31484-ec2c-4925-acc5-3d1a6f917421
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 4 of 692 PageID #:48669
`
`Page 391
`
` (Brief pause.)
` BY MS. KURCZ:
` Q. Mr. McDonnell, keep your voice up so everyone can hear.
` A. I'm sorry, yeah.
` Q. No worries. Can you think of an example where TT has
` monetized its distribution?
` A. I can. In fact, just recently we went live, in fact,
` last week with a firm called EEX, the European Energy
` Exchange. They're a very big exchange in Europe, and they
` pay us to connect their markets into TT. So they get our
` distribution, and in doing so that means that all of our
` traders can trade on their exchange.
` Another example would be early on this year we did
` a deal with BM & F which is the Brazilian exchange. And
` they, too, paid us to connect to their market. And in doing
` so, that preserves prices on TT screens, and traders
` throughout the world can access those prices. It's valuable
` to them and valuable enough for them to pay us. So that's
` the value of the distribution asset.
` I am presently working on a half dozen deals right
` now where other exchanges are looking to connect to TT and
` pay us for that same distribution.
` So it's not just selling the software to traders
` anymore, it's selling to exchanges who want to avail
` themselves of our distribution throughout the world. And we
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`db588f42-0559-4d58-805e-a5f74775634c
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 5 of 692 PageID #:48670
`
`Page 392
` have offices all over Asia, and all over Europe, and here in
` the States. And that's really important.
` Q. Has TT's competition changed over the years?
` A. Well, it has, given the fact that most of the
` competitors that were in play back in '98 and '99 have either
` gone out of business or been bought, and we're seeing new
` competitors coming into the space who are not traditional
` independent software vendors. So other players who already
` have established their own distribution points can come in
` and compete with us as they move in and start offering
` electronic trading execution on their systems.
` Q. Who does TT compete with today?
` A. CQG is one of our big competitors.
` Q. Was CQG a competitor in TT's early years?
` A. No.
` Q. How has that changed?
` A. Back many years ago CQG began to offer execution on
` their screens and such they were -- they've already
` established a user base, and they're using what we think is
` infringing software to sell against us.
` Q. Is CQG a direct competitor?
` A. Absolutely.
` Q. Does the presence of CQG's DOMTrader screen impact TT?
` A. It does, yeah. Yes.
` Q. How so?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`db588f42-0559-4d58-805e-a5f74775634c
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 6 of 692 PageID #:48671
`
`Page 393
` A. Well, in the first instance, they -- CQG are present at
` a number of our customers because they're cheaper than we
` are. They're competing with us. We've had to drop our
` prices, in fact. So our ability -- it's called price
` erosion. Our ability to keep pace with pricing is difficult.
` And we lose business to them because they have already got
` charts out there in the system, and they just add an MD
` Trader type window to it, and they can displace us.
` Q. Is TT still profitable today?
` A. No.
` Q. Why is that?
` MS. WYTSMA: Objection. Calls for speculation.
` Foundation. He's testified he has no knowledge of the
` financials.
` MS. KURCZ: We just went over some financials, your
` Honor.
` THE COURT: He did state that's not his area,
` didn't he? All right?
` Objection sustained.
` BY MS. KURCZ:
` Q. How does price erosion impact TT?
` MS. WYTSMA: Objection, your Honor. There is no
` lost profits claim in this case.
` THE COURT: Response?
` MS. KURCZ: Your Honor, this is part of the impact
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`db588f42-0559-4d58-805e-a5f74775634c
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 7 of 692 PageID #:48672
`
`Page 616
`
`MD Trader have a static price axis?
`A Yes, as you saw last week. Yes, MD Trader has a static
`price axis, yes.
`Q Can you explain that to the jury, please, how that's so.
`A Well, sure. So MD Trader has a static price axis as you
`saw because it operates in a mode. It has one mode in which it
`has a static price axis. But it also has another mode in which
`it has automatic re-centering.
`Q Is MD Trader covered by the patents in suit here?
`A Yes, it is covered by the patents in suit.
`Q Okay.
`A And I think that's probably the most important thing to
`understand here is that just because something has a mode in
`which there's automatic movement doesn't mean that it's not
`covered by the patent. Because if it also has a mode in which
`it is static, it's covered, and that's exactly the case.
` MR. VOLLER: Your Honor, objection.
` THE COURT: Basis.
` MR. VOLLER: Modes are not described in the claim
`construction. This is well beyond the claim construction that
`you provided in this court.
` THE COURT: Response.
` MR. GANNON: The question wasn't about the claim
`construction.
` THE COURT: Objection's overruled.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 8 of 692 PageID #:48673
`
`Page 617
` THE WITNESS: So I think that's the important thing
`to really understand here.
`BY MR. GANNON:
`Q Okay. Now, you're describing -- you described in your
`answer mode. Could you tell the jury what a mode is. Can we
`go to the next slide, please.
`A Sure. So mode is an operational state or maybe you could
`look at it as a set of conditions in which you would operate
`something in. Everything we do in our lives has modes. In
`your car most people have automatic transmission. It has
`reverse, neutral, drive. Those are modes. Your thermostat in
`your house, it has heating mode, cooling mode. The cruise
`control on cars, those have modes to get into the cruise
`control, out of the cruise control.
` When you go on a plane, most phones these days have
`airplane mode, so you can turn off the transmission when you're
`own the plane. And there's even apps now for phones, and cell
`phones are coming up with a mode where if they detect movement
`of the car, then it will stop you from texting. So those are
`all kind of examples of molds.
`Q So taking this into consideration, in your opinion do the
`CQG products have a static price axis?
`A Yes, they do.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 9 of 692 PageID #:48674
`
`Page 618
`
` Q Why is that?
` A Because they function in such a way that there is a mode in
` which the price axis is static.
` Q Do the accused products have a noninfringing mode?
` A Yes, they do.
` Q And could you describe to the jury what mode that is.
` A In the DOMTrader -- well, in the accused products, that is
` known as the dynamic scale mode.
` Q What mode in the accused products meets the construction of
` static?
` A Okay. Now, that is called the responsive scale mode.
` Q Okay. And with respect to DOMTrader, how do you put that
` product into that responsive scale mode?
` A Well, there's a menu setting, and you can actually see it
` here. There's a menu setting where you can choose either one,
` responsive scale or dynamic scale.
` And, actually, the default mode, so to speak, the
` default setting is the responsive scale. So, well, if you just
` got the software and you opened it for the first time, it would
` be in the responsive scale.
` Q Does the presence of the dynamic scale impact your opinion
` in any way?
` A No, not at all.
` Q And why not?
` A Because it's just an additional mode. The fact is is that
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 10 of 692 PageID #:48675
`
`Page 619
` the responsive scale mode is there, and that's all you need.
` Q Have you seen any evidence in this case of CQG describing
` the responsive scale as static?
` A Yes, I have.
` Q Okay. Let's go to PTX2314, please.
` MR. GANNON: And, Brian, if you could just blow up the
` top of the document just so we can see what we're looking at.
` And then if you could highlight the first sentence.
` First sentence. And then also highlight the third sentence
` where it starts with "It," "It does work."
` BY MR. GANNON:
` Q So, Mr. Thomas, could you describe what's shown on the
` screen here.
` A So this is an internal CQG engineering document. And
` they're referring to a dynamic DOMT, and they're referring to a
` static DT.
` And really -- so DOMT and DT, those are the
` DOMTraders. There's really only two choices as you saw in the
` menu setting. There's dynamic or responsive scale. So CQG
` internally are referring to the responsive scale mode as a
` static DOMTrader.
` Q And who is the e-mail from here?
` A It's from a gentleman called Yuriy Shterk, who I believe
` was head of product development for CQG.
` MR. GANNON: Brian, let's go to PTX138.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 11 of 692 PageID #:48676
`
`Page 620
` And if you could highlight -- I'm sorry, Brian. It's
` PTX138. Could you highlight just the top of the document,
` please.
` BY MR. GANNON:
` Q Mr. Thomas, just generally, can you describe what this
` document is?
` THE COURT: You know what, sir? While you're doing
` that, go ahead and make your move so you can turn --
` BY MR. GANNON:
` Q Just highlight that --
` THE COURT: One second, please.
` MR. GANNON: Sorry.
` THE COURT: You can turn your screen.
` COURT REPORTER: Thank you.
` BY MR. GANNON:
` Q Just generally, is this a CQG document?
` A Yes, it is, yes.
` Q And who is it from?
` A It's from Mr. Shterk again.
` MR. GANNON: Okay. Can you go to the page 2, Brian,
` and highlight static DT and dynamic DT.
` BY MR. GANNON:
` Q What is this showing, Mr. Thomas?
` A Well, just like in the previous document, they're referring
` to the dynamic DT and static DT, so again static being the
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 12 of 692 PageID #:48677
`
`Page 639
`
` potentially too big.
` Q Have you prepared a video showing how you get in and out of
` the browse prices mode?
` A Yes, I have.
` Q Okay. You want to just take the jury through this?
` A Yeah, yeah.
` Okay. So I'm going to launch the DOMTrader, and when
` it launches, it's in the responsive scale in market mode. And
` what I'm going to do next is I am going to select a price
` eventually.
` Okay. So you can see the price at 17977 is selected.
` Q How do you know that, Mr. Thomas?
` A Well, it's highlighted.
` Now I'm going to enter an order. Okay. I entered an
` order, and now we've got one contract working at 17976.
` Next thing I'm going to do is I'm going to deselect
` that price, get out of the market mode. So I'm going to hit
` the escape key, and you can see it's not selected anymore.
` And the next thing I'm going to do, I'm going to
` select a price again, and I'll be back in browse prices mode.
` And there you go. 17974 is selected back in browse
` prices mode.
` MR. GANNON: Let's go to the next slide, please.
` BY MR. GANNON:
` Q What is this showing, Mr. Thomas?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 13 of 692 PageID #:48678
`
`Page 640
` A So this shows -- it's a summary of the infringing products
` from the CQG Integrated Client. It shows the version ranges
` that have the DOMTrader with browse prices mode.
` Q What is this slide showing, Mr. Thomas?
` A This shows it for CQG Trader and WebTrader, and this shows
` which versions have browse prices mode.
` Q So we've talked about the browse prices mode. What is the
` second infringing mode that has a static price axis?
` A Well, those market -- excuse me -- the market windows that
` I showed you just a little bit ago, those can actually be
` disabled. And I call that market window disabled mode.
` Q And what is this slide showing?
` A So this is showing the DOMTrader with the market windows
` disabled. And in this case, you can see the red highlighted --
` the whole price display here is static.
` And that's what that shows.
` Q And so when you disable the market window, what price
` levels become static?
` A All of them. All of them in their display.
` Q Have you seen any documents in this case about disabling
` the market window?
` A Yes, I have.
` MR. GANNON: Okay. Let's put up PTX192.
` And can you highlight the bottom portion of that,
` Brian. Highlight the first sentence and the third sentence.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 14 of 692 PageID #:48679
`
`Page 641
`
` BY MR. GANNON:
` Q Now, first of all, Mr. Thomas, is this an internal CQG
` document?
` A Yes, it's from Mr. Shterk again.
` Q And what does this document say?
` A Well, he's saying he wants to know, basically, how the
` market windows disappear because in this case then, CQG is in
` violation of the TT patents.
` Q Okay. And do you understand what arguments CQG is making
` with respect to this disabling the market window --
` A Yes.
` Q -- or at least one of their arguments in connection with
` the mode issue?
` A Sure. Again, they're saying that it's -- it's not a mode.
` And also they're saying that it's a defect and that nobody did
` it.
` Q Okay. Do you agree with their argument regarding the mode?
` A No, definitely not.
` Q And why is that?
` A Well, because it has a set of conditions that when it's
` done, it meets the limitation.
` MR. GANNON: Okay. Let's go to the next slide,
` please, Brian.
` BY MR. GANNON:
` Q So how does a user disable the market windows?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 15 of 692 PageID #:48680
`
`Page 642
` A So there's two ways to disable it. You can either resize
` it or you can change a file, a setting in a file called an ini
` file.
` Q Okay. Let's talk about resizing. Did you prepare a video
` showing how to resize?
` A Yes, I did.
` Q Okay. Now, what is this? Could you take the jury through
` this portion.
` A Okay. So here we see the DOMTrader, and we've got the
` market window in the top, same browse prices mode. Price is
` selected at the bottom.
` Now, I'm going to resize the market windows so that
` it's just a bit smaller than the overall DOMTrader, deselected
` the price. Now what I'm going to do is I make the DOMTrader
` smaller, and I reselect the price.
` Now, when I've done that, the market windows will not
` appear.
` Q And how does the price levels change, if at all, when the
` market window is disabled?
` A The price levels when the market window is disabled are
` static.
` Q Do you have to resize the window every time that you trade?
` A No. Once you've done this, there's a few steps involved to
` do that.
` But once you've done it once, then you don't have to
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 16 of 692 PageID #:48681
`
`Page 643
` do it again. It remembers -- it remembers the settings. So
` when you reopen it -- if you close it, reopen it, I even
` believe that if you installed a new version that the settings
` would carry over. So you've only got to do it once.
` Q Is it pretty easy to resize to disable the market window?
` A Yeah.
` Q Now, you mentioned disabling the market window through a
` change in the ini file. What is that?
` A Sure. Well, an ini file is a file that's commonly used in
` applications to enable or disable certain functions of that
` application when it's running. So you can -- here is an
` example here. This is actually a CQG internal document that
` talks about the ini file.
` And if you look at the bottom, you can see that you
` can change it from -- the settings are either a 1 or a 0. If
` it's set to 1, then it will appear. If it's 0, then it won't
` appear.
` Q Is it pretty easy to change the ini file?
` A Sure. You just have to find -- at the bottom here, it says
` market window auto 0. You just find that line item, and you
` just change it to 0, save the file, and that's done.
` Q So when the market windows are disabled, what happens if
` the inside market goes past the edge of the screen?
` A Well, it will disappear.
` Q Do you have a video just showing that?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 17 of 692 PageID #:48682
`
`Page 644
`
` A Sure, yep.
` So you can see here -- so we've disabled the window.
` And price is selected. And you can see here the market's gone
` off the bottom of the screen. There's no market windows,
` nothing.
` And the price display is static. There's no movement.
` Q When the market window is disabled, can you re-center like
` in MD Trader?
` A Yes, you can, yes.
` Q Now, you mentioned that CQG said that disabling the market
` window is a defect.
` A Mm-hmm.
` Q Is that right?
` A Yes.
` Q Do you know whether CQG's disputing whether or not the
` functionality is actually in the products?
` A No, they're not disputing that.
` Q Okay. Do you agree that this is a defect?
` A No, not at all.
` MR. GANNON: Okay. Let's go to PTX194.
` And if you could go to page 3, and highlight the first
` paragraph starting with "the behavior in question." Yeah.
` So go up -- yeah, right there. And you can stop right
` there.
` BY MR. GANNON:
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 18 of 692 PageID #:48683
`
`Page 645
` Q Okay. What is this? First of all, what is this document,
` Mr. Thomas?
` A So, again, this is an internal CQG engineering document.
` And I'd just like to say, you know, a defect, the
` normal word of a defect is like a software bug where there's
` something wrong. It's not -- it's not a feature or anything.
` If you look here at what the highlighted text, it says
` the behavior in question is intentional. That's not a defect.
` So it's intentional. Somebody requested it. And it says the
` code checks whether the market window will have more rows than
` the grid has, and, if so, then it doesn't show the market
` window.
` It's not a defect. Although they are calling it a
` defect in this e-mail, it's not a defect in the common meaning
` of the word.
` Q What does a defect mean?
` A To me?
` Q Yes.
` A A defect to me is, like I said, just a bug, something that
` is just not functioning correctly or it's an error. But this
` isn't an error. It's intentional.
` Q Okay. Did CQG remove the market window disabled mode from
` their products?
` A Yeah, they did in late 2010, I believe. But it was in the
` product for about five to six years before that.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 19 of 692 PageID #:48684
`
`Page 654
` Q Okay. So so far you've talked about the browse prices mode
` and the mode -- and the mode in which the market windows are
` disabled.
` A Yes.
` Q Is there a third infringing mode?
` A Yes. My favorite is called -- sorry. Excuse me.
` Yes, this mode is called price hold or hover mode.
` Q And can you describe that mode, please.
` A So this mode occurs when the product is in the responsive
` scale, in market mode.
` And in this mode, the price hold, what it does is
` it -- even if there's some movement in the price display, the
` price hold ensures that you do not miss your price when you
` place an order, even if there's movement in the screen.
` Q Okay. So how do you access the -- this particular mode?
` A Well, you have to have what's called fast click enabled.
` Q Okay. And when you get in -- what -- is this in responsive
` or dynamic, this particular mode?
` A Yes, this is in the responsive scale.
` Q Okay. And then once you're in the responsive scale, how do
` you access the mode?
` A Well, when you open it, when you open the product in the
` responsive scale, it's in market mode.
` Q Do you have a video showing that?
` A Oh, yes. Actually, yeah.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 20 of 692 PageID #:48685
`
`Page 655
`
` Q Okay. What is shown here, Mr. Thomas?
` A So this is showing our market mode on the left here. So on
` the right is the DOMTrader -- the MD Trader. And you can see
` the market is moving up and down relative to the price axis,
` and that is basically in market mode.
` Q Okay. Now, when you're in this market mode, can the price
` axis move automatically?
` A Yes. Occasionally, maybe one or two times a day for common
` futures, sometimes less if you have a lot of price -- lot of
` price levels displayed. There can be movement if the price
` goes off the display. There can be automatic movement.
` Q So in the first two modes that you described, a trader
` could avoid all automatic movement. Is that a fair statement?
` A Yes.
` Q Okay. Can the trader avoid this type of automatic movement
` in this particular mode, the market mode?
` A Yes, it can. In fact, if all that this did was just this,
` then my infringement analysis would stop at this point.
` But the fact is is that CQG added a feature into
` market mode called price hold. And what that does is when you
` hover your mouse over either a buy or sell region next to a
` price, it locks in that price.
` So if the labels change, the price labels change on
` the display, when you place an order, you still get your price.
` So although it doesn't meet the construction of static
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 21 of 692 PageID #:48686
`
`Page 656
` literally, then -- but it is -- it's equivalent to static.
` Q Okay. When you say equivalent, what do you mean by that?
` A So I've been informed that if the difference between the
` claims and the functionality of an accused product is
` insubstantial, then they're equivalent.
` MR. GANNON: Okay. Let's go to the next slide.
` BY MR. GANNON:
` Q What is this showing, Mr. Thomas?
` A Right. So what this is showing is a patented key on the
` top, and on the bottom is the test for equivalents. And the
` test is performs substantially the same function in
` substantially the same way to perform substantially the same
` result. That's the test for equivalents.
` Q Okay. What is this slide showing?
` A So this shows another key. And it's not literally the same
` as the patented key because it has a different shaped head and
` it's a different color.
` So now what we're going to do is we're going to do the
` test, test of the bottom. What is the function of the keys?
` The function of both of them is to unlock the door. The way in
` which they do that, you insert the key and the lock turns. And
` the result is the door opens.
` So both of these keys are equivalent.
` Q Okay. Now, you mentioned -- you described the price hold
` feature. Did you prepare anything to show that visually?
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 22 of 692 PageID #:48687
`
`Page 657
`
` A Yes, I did.
` Q Okay. We're going to put up an animation. Can you take
` the jury through this.
` A Right. So this is in market mode, the responsive scale
` market mode. Excuse me.
` And what you're going to see here is you're going
` to -- so just focus on 98 for a second. The market moves up,
` and you can see here that what was -- 98 has moved down one
` price. Okay?
` Now, let's keep going. So now you see I've moved my
` mouse right next to the price. So I'm hovering over it. Now,
` that price that's there is now locked in. It's locked in.
` Okay?
` So let's keep going. Now you can see -- you see the
` 98 has moved down. And so we have a displayed value next to
` where I'm hovering of 101.
` The real price, though, is still associated with
` there, but the labels -- not the price -- the labels have moved
` down. You can see 98 down below there.
` So keep going. Now, I just placed an order. I wanted
` 98. Now, look. If you look down to where 98, the label, had
` moved down to, you see I have a working order at 98. So even
` though the labels moved in the display, I still got my price.
` Q Mr. Thomas, is this type of -- isn't this the type of
` automatic movement that you showed in the figure 2-style
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 23 of 692 PageID #:48688
`
`Page 658
`
` screens that we talked about last week?
` A No, this is very different.
` Q And how is it different than those conventional screens?
` A Okay. Now, if you remember the conventional screens, when
` we had the prices -- so every single time the inside market
` changed, those prices changed. But that's the real value of
` that price. The real value of that price is changing.
` Here what's happening is the label associated with the
` price may move, but the real price associated with where the
` mouse was is still there. Otherwise, it wouldn't get my order.
` So it's kind of a gimmick in a way.
` Q When you say a gimmick, what do you mean by a gimmick?
` A Well, think of it this way. Imagine -- imagine you've got
` your keyboard on your computer, and somebody paints a Z on the
` A key. If I press the A -- well, now what it's saying, it's a
` Z key. If I press it, I still get A, though. So it's kind of
` a gimmick.
` The real thing that you get -- that you want is still
` associated when the mouse is hovering.
` Q Okay. And you mentioned to get into this mode, you need
` fast click?
` A That's correct, yeah.
` Q What is that?
` A Well, fast click is a -- it's a menu setting. And that's
` needed to get into this.
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 24 of 692 PageID #:48689
`
`Page 659
` Q Okay. Have you seen any documents in this case that
` support your opinion on this price hold feature being
` equivalent?
` A Yes, I have, yes.
` MR. GANNON: Okay. Let's go to PTX182.
` And if you could blow up in the middle and highlight
` it in yellow starting with "When I hover."
` BY MR. GANNON:
` Q And, Mr. Thomas, could you just describe, just generally,
` again what this e-mail is.
` A This is an internal CQG e-mail. And here it says, "When I
` hover over a price, the price becomes static, not the price
` display."
` So that's exactly what I was just saying. So the
` price that you want, the intended price, stays associated with
` it, but the labels move.
` Q And is this document, when it's referring to hover, is that
` the hover you were describing?
` A That's it, yes, exactly.
` Q Okay. Are you aware of any testimony in this case relevant
` on this particular issue?
` A Yes.
` Q Could you describe what testimony you recall, if you do,
` Mr. Thomas?
` A I believe that Mr. Veselica, who is coming to testify here
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`
`601a31c1-bf0e-41b9-8d21-522f815b08a5
`
`
`
`Case: 1:05-cv-04811 Document #: 1228-2 Filed: 04/15/15 Page 25 of 692 PageID #:48690
`
`Page 660
` this week, I believe in his deposition that he testified that
` he uses the price hover feature to trade.
` Q Okay. Are you aware of any testimony from any CQG
` employees in this case?
` A Well -- well, actually, I believe the depos
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
