UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TD AMEPJTRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`Patent No. 6,766,304
`
`DECLARATION OF KENDYL A. ROMAN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 6,766,304
`
`TDA 1017
`CBM of U.S. Pat. No. 6,766,304
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`TD AMEPJTRADE HOLDING CORPORATION, TD AMERITRADE, INC.,
`AND TD AMERITRADE ONLINE HOLDINGS CORP.
`Petitioners
`
`V.
`
`TRADING TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`Patent No. 6,766,304
`
`DECLARATION OF KENDYL A. ROMAN
`IN SUPPORT OF PETITION FOR
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 6,766,304
`
`TDA 1017
`CBM of U.S. Pat. No. 6,766,304
`
`
`
`I, Kendyl A. Roman, declare as follows:
`
`1.
`
`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
`
`behalf of Petitioners, TD Ameritrade Holding Corporation, TD Ameritrade, Inc.,
`
`and TD Ameritrade Online Holdings Corp. ("Petitioners") for the above-captioned
`
`covered business method review proceeding. I understand that this proceeding
`
`involves United States Patent 6,766,304, entitled "Click based trading with
`
`intuitive grid display of market depth," by Gary Allan Kemp, II, filed June 27,
`
`2001 and issued July 20, 2004, (the "304 Patent"). I understand that the ’304
`
`Patent is currently assigned to Trading Technologies International, Inc. ("TTI")
`
`2.
`
`I understand the ’304 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 ’304 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 ’304
`
`Patent. I understand that the ’304 Patent has been provided as Exhibit 1001. I will
`
`cite to the specification using the following format (’304, 1:1-10). This example
`
`citation points to the ’304 Patent specification at column 1, lines 1-10.
`
`4.
`
`I have reviewed and am familiar with the file history of the ’304
`
`Patent. I understand that the file history has been provided as Exhibit 1022.
`
`-2-
`
`
`
`5. (cid:9)
`
`I have also reviewed and am familiar with the following prior art used
`
`in the Petition for Covered Business Method Review of the ’304 Patent:
`
`. U.S. Patent No. 5,297,031 to Gutterman et al. ("Gutterman "). I
`
`understand that Gutterman has been provided as Exhibit 1007.
`
`. U.S. Patent No. 5,077,665 to Silverman et al. ("Silverman"). I
`
`understand that Silverman has been provided as Exhibit 1008.
`
`. 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 1002, the
`
`certified translation provided as Exhibit 1003, and the certification of
`
`translation provided as Exhibit 1004.
`
`(cid:149) U.S. Patent No. 5,263,134 to Paal et al. ("Paal"). I understand that
`
`Paal has been provided as Exhibit 1009.
`
`6. (cid:9)
`
`A complete listing of additional materials considered and relied upon
`
`in preparation of my declaration is provided as Exhibit 1019. I have relied on
`
`these materials to varying degrees. Citations to these materials that appear below
`
`are meant to be exemplary but not exhaustive.
`
`-3-
`
`
`
`7.
`
`The ’304 Patent describes click based trading with intuitive grid
`
`display of market depth. ( 1 304 Patent, Title.) I am familiar with the technology
`
`described in the ’304 Patent as of the earliest possible priority date of the ’304
`
`Patent (March 2, 2000).
`
`8.
`
`I have been asked to provide my technical review, analysis, insights
`
`and opinions regarding the ’304 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 ’304 Patent.
`
`I. QUALIFICATIONS
`
`9.
`
`See my Curriculum Vitae provided as Exhibit 1018 for a listing of my
`
`qualifications. This includes a list of publications for the past 10 years or more.
`
`10. My expertise qualifies me to do the type of analysis required in this
`
`case. Of particular relevance, I have been involved in the design, implementation,
`
`testing, and analysis of computer software, firmware, and hardware for over thirty
`
`years, including software architecture, graphical user interfaces, trading systems,
`
`and other networked, data-driven, client-server systems. My work has included
`
`analysis of trading systems including source code and user interfaces. In addition, I
`
`have practical experience in the design and programming of a variety of computer
`
`
`
`systems ranging from handheld devices, to laptops and desktop computers, to large
`
`multi-layer networked database systems.
`
`11. As a freshman at Brigham Young University ("BYU") in 1976, I
`
`started writing programs for IBM computers.
`
`12.
`
`In 1980, I worked with Apple II computers and wrote computer
`
`programs having graphic user interfaces.
`
`13.
`
`In the late 1960’s and 1970’s the University of Utah was known for its
`
`pioneering work in computer graphics (and the Internet’). At BYU, I got involved
`
`with computer graphics and wrote graphics programs. Many of my BYTJ
`
`professors had been at the University of Utah during its computer science
`
`pioneering years. One of my BYU professors, Alan Ashton, and a fellow
`
`computer science student, Bruce Bastian, worked together on word processing
`
`software with graphical display. Later, Professor Ashton and Bruce Bastian
`
`founded WordPerfect.
`
`14.
`
`I graduated with High Honors from Brigham Young University where
`
`I received a Bachelor of Science degree in Computer Science. My formal studies
`
`1 In 1969, University of Utah was one of the first four nodes on the Internet.
`
`-5-
`
`
`
`included computer architecture, computer programming, programming languages,
`
`algorithms, operating systems, database systems, and digital logic design.
`
`15.
`
`In 1981, I worked at International Business Machines ("IBM") in San
`
`Jose, CA. At IBM, I had a graphics display on my desk and wrote programs that
`
`displayed custom graphics. During my employment at IBM, the IBM PC was
`
`released. The IBM PC also supported graphical user interfaces.
`
`16.
`
`In 1982, at Dialogic, I improved the performance of the Computer
`
`Aided Design ("CAD") software. 2 The CAD software drew polygons on the
`
`graphical display and placed them along value axes.
`
`17.
`
`In this timeframe, I had experience with Tandy computers, including
`
`the TRS-80, and with Commodore VIC 20 computers, which supported graphical
`
`user interfaces.
`
`18.
`
`In 1984, I starting writing programs for the Apple Lisa and
`
`Macintosh, which had a sophistical graphical user interface built into the firmware
`
`and operating system. Both Lisa and Macintosh used a one-button mouse as a
`
`2 The software, the Lucas Drawing System, had been developed by Lucas
`
`Films to aid in the production Star Wars.
`
`sd
`
`
`
`pointing device. The user controls various operations by clicking, double clicking,
`
`or dragging the mouse. Such operations are affected by release the mouse button.
`
`For example, a mouse click is defined by the release of a mouse button within a set
`
`number of pixels from where it was depressed. A double click is defined by the
`
`second release when clicking twice. Likewise, a click and drag is depressing the
`
`button to select the item, and releasing the mouse button to release it at the desired
`
`location or value.
`
`19. (cid:9)
`
`I developed a Macintosh program that drew graphical icons (or
`
`polygons) on the display. 3 The icons changed size base on a numerical value. The
`
`user interface allowed for a window to be displayed that showed the numerical
`
`value as text.
`
`An article regarding the software was published in Mac World Magazine
`
`around February 1987. A review was published in 1990 by the Boston Computer
`
`Society, which also showed various features of the user interface. See
`
`http://www.wolfpup.org/misc/MacBaby_Math_review.pdf.
`
`-7-
`
`
`
`20. Next in 1986, I started consulting at Hewlett Packard ("HP") where I
`
`became familiar with standard printer description languages and graphic command
`
`languages. During this time I used X-Windows.
`
`21.
`
`Later, in 1988 through 1990, at Tandem (now Compaq, now HP), I
`
`worked with CAD systems and hardware simulators, which used graphical user
`
`interfaces and included pop-up windows that provided textual representations of
`
`values related to graphical displays.
`
`22.
`
`In 1990, I authored portions of the Macintosh Programming
`
`Fundamentals: Self-paced Training course interactive CD-ROM and lab book.
`
`23.
`
`I returned to HP in 1991 where I worked with diagnostic tools,
`
`including exercises and verifiers. During this period, I was involved in testing
`
`various graphics adapters and display devices throughout the HP product line. I
`
`worked with a X-Windows based diagnostic tool that displayed an icon for every
`
`component of the system. The number, type, and locations of the icons were based
`
`on the components actually found in the system. The icons were dynamically
`
`changed to represent the status of the testing.
`
`24.
`
`In 1991 and 1992, at Slate and Apple, I worked with the pen based
`
`tablets and handheld computers including, the NCR tablet and Newton PDA.
`
`
`
`25.
`
`In 1993 and 1994, I taught classes for Mentor Graphics to hardware
`
`designers regarding hardware simulation and design verification software. Mentor
`
`Graphics’ CAD system had the features discussed above regarding CAD software.
`
`In addition, I taught users how to customize CAD software to perform complex
`
`custom operations based on a single action with a user input device.
`
`26.
`
`In 1993 and 1994, at Apple I worked with the Apple Media Tool team
`
`and the SK8 team, which included working with state of the art graphic display
`
`systems.
`
`27.
`
`In the early 1990s, before the World Wide Web became
`
`commercialized, multimedia technology was becoming state of the art. During this
`
`time, interactive CD-ROMs, early commercial Internet sites, high-resolution color
`
`animation, and digital video were state of the art technologies. While at The Carl
`
`Group, I formed the Multimedia Lab. Projects included porting a program to
`
`automate layout of ball grid assemblies (BGA), updating automatic test equipment
`
`software to use state of the art graphical user interfaces, developing graphic
`
`animations, developing multimedia authoring tools and various interactive CD-
`
`ROM titles. My work with multimedia authoring tools included developing low-
`
`level graphics software for both the Macintosh and IBM PC platforms.
`
`S
`
`
`
`28. We sold our multimedia authoring tools to the public and I developed
`
`an interactive user interface, which allowed users to enter and confirm information
`
`including prices and quantities, which resulted in an order being sent to our server.
`
`29. Also in the mid-1990s, we developed a database driven, on-demand
`
`catalog publish system for Sun, which allowed users to configure and order
`
`products on via a graphical user interface. At Sun, I used workstations using Open
`
`Look, which was a graphical user interface based on pioneering work at Xerox
`
`PARC, and which was competitive with X Windows which was being used by
`
`Hewlett Packard.
`
`30.
`
`In the mid-1990s, I developed a medical communications device that
`
`could transmit medical quality video images over the Internet in real time. This
`
`work included developing various graphical user interfaces. I have patents on
`
`some of this technology as discussed below.
`
`31. During this time, I was familiar with the graphical user interfaces in
`
`various medical devices. These included EKG, ultrasound, and medical records
`
`systems.
`
`32.
`
`In many of these professional assignments, I analyzed the
`
`architecture, function, and operation of software with graphical user interfaces.
`
`-10-
`
`
`
`33.
`
`Prior to being retained in this matter, I have acquired and performed
`
`forensic analysis of several computer systems. In particular, in 1999-2002, I
`
`performed the technical analysis of both copyright and trade secrets in the
`
`Tradescape.com, Inc., et al. v. Shivaram, et al. cases. In those cases, I reviewed the
`
`source code and operations of the market-leading day trading systems and illicit
`
`copies. I also surveyed the current state of the art to address the trade secrets
`
`versus what was publicly known. Tradescape was later acquired by E*T rade.
`
`34. As part of my review of the operations in the Tradescape engagement,
`
`I personally observed day traders conducting tens of thousands of dollars of
`
`transactions within seconds. For example, I observed one trader buy 10,000 shares
`
`of stock and then immediately buy another 10,000 shares using the same default
`
`quantity (i.e., 10,000) within two seconds. Then, this same trader sold all 20,000
`
`shares at a substantial profit less than a minute later.
`
`35.
`
`I worked on the Datamize v. Fidelity, Scottrade, Interactive Brokers
`
`Group, et al. patent case, which involved user interfaces used by the defendants in
`
`their trading software.
`
`36.
`
`I performed a code review for a patent case, Chicago Board Options
`
`Exchange v. International Securities Exchange, which involved security exchange
`
`trading software.
`
`-11 -
`
`
`
`37.
`
`Further, I have extensive experience in designing, developing and
`
`analyzing database, networked systems and their user interfaces. As a result, I
`
`have had access to the type of components and information at issue in this case and
`
`have contemporaneous knowledge of what was publicly known.
`
`38. My Curriculum Vitae identifies over 60 issued patents and over 60
`
`published patent applications for which I am listed as an inventor or assignee.
`
`Several of my inventions include graphical user interfaces and networked client-
`
`server systems, these include:
`
`U.S. 8,590,777, Space equipment recognition and control using
`
`handheld devices
`
`. U.S. 8,500,563, Display, device, method, and computer program
`
`for indicating a clear shot
`
`. U.S. 8,282,493, Display, device, method, and computer program
`
`for indicating a clear shot
`
`o U.S. 7,698,653, Graphical user interface including zoom control
`
`box representing image and magnification of displayed image
`
`U.S. 7,424,473, System and method for asset tracking with
`
`organization-property-individual model
`
`-12-
`
`
`
`U.S. 7,257,158, System for transmitting video images over a
`
`computer network to a remote receiver
`
`U.S. 7,191,462, System for transmitting video images over a
`
`computer network to a remote receiver
`
`. U.S. 6,803,931, Graphical user interface including zoom control
`
`box representing image and magnification of displayed image
`
`39.
`
`I have reviewed and analyzed numerous patents and prior art systems
`
`through my litigation support work, including patents and prior art related to the
`
`architecture and operation of computer systems including graphics. I have taken a
`
`number of courses offered by the U.S. Patent and Trademark Office and the
`
`Sunnyvale Center for Innovation, Inventions, and Ideas (Sc[i]3).
`
`40. Both Federal and State Courts have recognized me as an expert in
`
`computer software including trading systems and graphical user interfaces,
`
`computer architecture, computer hardware, database systems, networks, and
`
`computer forensic science.
`
`41.
`
`In addition, I recently served as a Special Master in a Federal District
`
`Court in Paycom Payroll, LLC v. Richison and Period Financial, which included
`
`financial systems with graphical user interfaces. I have served as a court-appointed
`
`- 13-
`
`
`
`expert in San Jose, CA, in Aspect Communications Corporation v. eConvergent,
`
`Inc. et al., which included financial systems with graphical user interfaces, and in
`
`Ribeiro v. Weichselbaumer, which included financial and graphical analysis.
`
`A. Testifying Engagements
`
`42.
`
`Cases in which I have testified as an expert witness at trial or by
`
`deposition during the previous four years are identified as:
`
`Eastern District of Virginia, Alexandria, 1:11 -cv-0 1203,
`
`Reporting Technologies, Inc. v. Emma, Inc.
`
`Central District of California, Los Angeles, 2: 1 0-cv-07678,
`
`Futurelogic, Inc. v. Nanoptix, Inc.
`
`Southern District of Texas, Houston, 3:08-cv-1 19,
`
`Wellogix v. Accenture
`
`Northern District of California, San Jose, 09-cv-01808,
`
`Embry v. Acer America
`
`Southern District of Texas, Houston, 4:09-cv-151 1 9
`Wellogix v. BP
`
`43. Also the following is the case identification of the cases where I have
`
`provided recent reports or declarations but have not testified:
`
`. District of Minnesota, 12-cv-1357, Twin City Fan Companies, Ltd. v.
`
`FPT Software
`
`-14-
`
`
`
`(cid:149) Superior Court of California, Riverside County, Indio, INC 1108128,
`
`Malanche v. Eisenhower Medical Center
`
`(cid:149) Central District of California, Western Division, 2:12-cv-05257,
`
`Innersvingen AS v. Sports Hoop, Inc
`
`(cid:149) Western District of Oklahoma, 09-cv-488, Paycom Payroll, LLC v.
`
`Richison and Period Financial Corporation
`
`44.
`
`Some additional prior cases related to software interfaces, graphics,
`
`and patent analysis, include: Konrad v. General Motors, et al.; ACTV, Inc. and
`
`HyperTV Networks, Inc. v. The Walt Disney Co., ABC, Inc. and ESPN, Inc.; and
`
`Collaboration Properties v. Polycom.
`
`45.
`
`In Konrad v. General Motors, et al., I analyzed the source code and
`
`operation of data-driven web sites for many of the largest companies in America.
`
`The graphical user interfaces displayed current quantity and pricing, and allowed
`
`order placement and confirmation for airline seats, rental cars, and hotel rooms.
`
`Many of these systems allowed for available commodities to be display in order of
`
`price or other values.
`
`46.
`
`In ACTVv. Disney, I analyzed the Disney (ABC and ESPN)
`
`interactive television system that included an interactive graphical user interface.
`
`- 15 -
`
`
`
`47.
`
`In Collaboration Properties v. Polycom, I analyzed video
`
`conferencing systems including telephony and graphics output systems and
`
`standards.
`
`48. My Curriculum Vitae 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 $495.00 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 ’304 Patent.
`
`II. MY UNDERSTANDING OF CLAIM CONSTRUCTION
`
`49.
`
`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
`
`50.
`
`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
`
`-16-
`
`
`
`technical experts in forming opinions regarding meaning and validity of patent
`
`claims.
`
`51.
`
`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.
`
`52. 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:
`
`. the levels of education and experience of persons working in the field;
`
`. the types of problems encountered in the field; and
`
`I have relied on the Federal Circuit Bar Association Model Patent Jury
`
`Instructions, February 18, 2010, as well as my own experience regarding cited
`
`[1N!
`
`-17-
`
`
`
`the sophistication of the technology.
`
`53.
`
`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.
`
`54.
`
`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.
`
`55.
`
`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
`
`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
`
`56. One of ordinary skill in the art at the time of the alleged invention,
`
`would have had the equivalent of a Bachelor’s degree or higher in computer
`
`science and at least 2 years working experience designing graphical user interfaces,
`
`and direct or indirect experience with trading or related systems. Experience could
`
`take the place of some formal training, as domain knowledge and user interface
`
`design skills may be learned on the job.
`
`IV. BACKGROUND OF THE TECHNOLOGIES DISCLOSED IN THE
`’304 PATENT
`
`A. Computer Hardware, Software, and Firmware
`
`57. Originally, computers were composed only of physical circuits,
`
`known as hardware,’ that were programmed by physically configuring wires (like a
`
`telephone switch board operator). Computer programs (a series of computer
`
`Hardware is the tangible components of a computing system, such as
`
`vacuum tubes, wires, circuit boards and other discrete components.
`
`-19-
`
`
`
`instructions) stored in memory are known as software, 6 because they can be
`
`modified much more easily than hardware. In the late 1970s, personal computers
`
`(PCs) became commercial products (such as the Apple II in 1977). In some PCs, a
`
`bootstrap loader and other basic input and output programs were permanently
`
`stored in hardware chips, known as read-only-memories ("ROM"). These
`
`programs recorded indelibly in ROM were no longer "soft" enough to be modified,
`
`but could be changed by replacing one socketed ROM with another ROM
`
`containing another version of the program. Because they are intimately bonded
`
`with the hardware, these programs are called firmware. 7
`
`6 Software is a "generic term for those components of a computer system
`
`that are intangible rather than physical. It is most commonly used to refer to the
`
`programs executed by a computer system as distinct from the physical hardware of
`
`that computer system, and to encompass both symbolic and executable forms for
`
`such programs." (Oxford Dictionary ’software’)
`
`Generally, firmware refers to CPU instructions stored in a programmable
`
`ROM.
`
`-20-
`
`
`
`A.
`
`Input/Output Adapters and User Input Devices
`
`58.
`
`In addition to the CPU and main memory, a computer usually has
`
`various input and output (or I/O) devices. I/O devices include disks, tapes,
`
`keyboards and other input devices, displays, printers, and communications devices.
`
`Disks and tapes are also known as memory or storage, and (as discussed above) are
`
`distinguished from main memory by the term "secondary memory." Other input
`
`devices include mice, pens, tablets, touch pads, touch screens, and cameras.
`
`B. (cid:9)
`
`Display, Pixel, and Video Frame
`
`59. When Philo T. Farnsworth invented electronic television in the late
`
`1920’s, he modified a vacuum tube to control the movement of an electron beam
`
`from the cathode (the negative terminal) on the back the tube to scan across the
`
`screen on the other side of the tube (the anode, or positive terminal). Where the
`
`beam hits the glass (and coating of phosphors) the glass glows. Magnetic coils
`
`deflect the electron beam. In television, the entire front of the tube is scanned
`
`repetitively in a fixed pattern called a raster. The intensity of the electron beam is
`
`modified to change the brightness on point along the raster scan. The result points
`
`on the screen are called picture elements, or "pixels."
`
`60.
`
`In the United States the National Television System Committee
`
`("NTSC") standard defines a raster of 525 scan lines, which refresh at 30 times a
`
`-21-
`
`
`
`second. Each time the video screen is refreshed the contents is a frame of video
`
`data. The frame is interlaced with odd and even line fields with a field changing
`
`60 times a second. The NTSC standard also set a 4:3 aspect ratio. Even though
`
`there are 525 lines, the visible area is generally 480 lines high which results in an
`
`array of pixels which 640 pixels wide, or 640 x 480 pixel resolution.
`
`C. Bits, Bitmaps, Pixmaps, and Graphic Images
`
`61. A binary digit ("bit") can have a value of zero (0) or one (1).
`
`Computer digital logic uses zero to represent "false" and one to represent "true",
`
`thus 0 is false and 1 is true.
`
`62. A bit map originally was a data structure having one bit for each
`
`pixel.8 This are now referred to as Black and White ("B&W") bitmaps, or two
`
`8 In 1984, when the Apple Macintosh was released, it had a black and white
`
`screen and its screen buffer was a true bitmap, named screenBits, in a special
`
`location in main memory. "The Macintosh screen itself is one large visible bit
`
`image. The upper 21,888 bytes of memory are displayed as a matrix of 175,104
`
`pixels on the screen, each bit corresponding to one pixel. . .The screen is 342 pixels
`
`tall and 512 pixels wide" (Inside Macintosh, Promotional Edition, p. 12).
`
`-22-
`
`
`
`color bitmaps. A one would turn on the electron beam for that pixel and a zero
`
`would turn off the electron beam. A bitmap could be created to define a character.
`
`For example, in CGA a character was defined as an 8x8 bitmap.
`
`63.
`
`The same concept was applied to create a color bitmap, or pixel map
`
`("pixmap") where more than one bit represents the color for each pixel. Like
`
`B&W bitmaps, a color bitmap is a consecutive array of pixel data, where there
`
`more than one bit makes up the array elements. In some contexts, the term bitmap
`
`is used to refer to pixmaps, as well as B&W bitmaps.
`
`64. A bitmap can also be used to store a graphic image as an array of
`
`color values for each point in the image. For example, the Macintosh used bitmaps
`
`for icons in it Graphical User Interface (GUT). Further, Windows and OS/2 have a
`
`bitmap file format (.BMP). JPEG, TIFF, GIF, and PNG also store bitmaps in a
`
`compressed format.
`
`65. Graphic images can also be drawn (or rendered) using graphic
`
`commands. Rectangles, circles, and other polygons can be drawn having different
`
`sizes and colors.
`
`-23-
`
`
`
`V. OVERVIEW OF THE ’304 PATENT
`
`66.
`
`The ’304 Patent is directed to a "method and system for reducing the
`
`time it takes for a trader to place a trade when electronically trading on an
`
`exchange, thus increasing the likelihood that the trader will have orders filled at
`
`desirable prices and quantities." (’304 Patent, Abstract) The ’304 Patent refers to
`
`a trading system called "Mercury" that allegedly "ensure[d] fast and accurate
`
`execution of trades by displaying market depth on a vertical or horizontal plane,
`
`which fluctuates logically up or down, left or right across the plane as the market
`
`prices fluctuates. This allows the trader to trade quickly and efficiently." (’304
`
`Patent, Abstract)
`
`67.
`
`The specification further stresses that "the present invention is
`
`directed to a graphical user interface for displaying the market depth of a
`
`commodity traded in a market, including a dynamic display for a plurality of bids
`
`and for a plurality of asks in the market for the commodity and a static display of
`
`prices corresponding to the plurality of bids and asks." (’304 Patent, 3:15-20)
`
`"Also described herein is a method and system for placing trade orders using such
`
`displays." (’304 Patent, 3:22-24)
`
`-24-
`
`
`
`68. (cid:9)
`
`A bid is an order to buy a financial instrument or security, such as a
`
`stock, a stock option, or a future, at a specific price. An ask, sometimes called an
`
`offer, is an order to sell a financial instrument at a specific price.
`
`69. For example, Fig. 3 of the ’304 Patent, graphically shows bids and
`
`asks. The "Mercury display is a static vertical column of prices with the bid and
`
`ask quantities displayed in vertical columns to the side of the price column and
`
`aligned with the corresponding bid and ask prices." (’304, 7:49-53) "Mercury also
`
`provides an order entry system, market grid, fill window and summary of market
`
`orders in one simple window." (’304, 7:38-40)
`
`- 25 -
`
`
`
`11IJ12I ME
`
`FIG. 3
`
`1009
`1010-
`
`1011-
`
`101 2-
`1013-
`1014’
`
`E
`Iu (cid:9)
`---I
`
`1007 -4
`
`1015’
`1016-,"’
`
`1008 -<
`
`1017-
`1018’
`
`1019-
`
`1021-
`
`mmum
`
`mmommol
`
`>1020
`
`NOUN
`
`Mmmum
`
`
`
`NOUN
`
`mmum
`__
`
`_
`
`_ (cid:9)
`YY (cid:9)
`1001 (cid:9)
`
`1002 (cid:9)
`
`_ _
`V (cid:9)
`V
`1003 1004 1005 1006
`
`V (cid:9)
`
`-26-
`
`
`
`A. (cid:9)
`
`"single action"
`
`70. The specification provides a definition for this term: "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, is considered a single action of the user for
`
`the purposes of the present invention."
`
`(’304, 4:19-23, emphasis added.)
`
`B. (cid:9)
`
`"common static price axis"
`
`71.
`
`Independent claims 1 and 27 each recites the term "common static
`
`price axis": ". . . each location in the bid [ask] display region corresponding to a
`
`price level along the common static price axis. . . ." (’304, 12:40-54, emphasis
`
`added.) For purposes of this proceeding, the broadest reasonable interpretation of
`
`the term "common static price axis" is "a reference line or column for price levels
`
`that do not change positions unless a re-centering command is received, and is
`
`common to the bid and ask display regions." The re-centering command can be
`
`manual or automatic.
`
`72.
`
`This construction is consistent with the specification: "The values in
`
`the price column are static; that is, they do not normally change positions unless a
`
`re-centering command is received (discussed in detail later)." (’304, 7:65-67,
`
`emphasis added.)
`
`-27-
`
`
`
`73.
`
`I’ve been advised that in Trading Techs. Int’l, Inc. v. eSpeed, Inc., No.
`
`1 :04-cv-053 12 (N.D. Ill.), the Court adopted the construction as "a line comprising
`
`price levels that do not change positions unless a manual re-centering command is
`
`received and where the line of prices corresponds to at least one bide value an one
`
`ask value." Trading Techs. Int’l, Inc. v. eSpeed, Inc., 2006 WL 3147697, at *4
`
`(N.D.Ill. Oct. 31, 2006). I was also advised that the Court also found that the term
`
`"common’ connotes no more than a relationship between the price axis and the
`
`bid and ask display regions." eSpeed, 2006 WL 3147697, at 5. I was also advised
`
`the Court later "clarifijed] that the price axis never changes positions unless by
`
`manual re-centering or repositioning." Trading Techs. Int ’1, Inc. v. eSpeed, Inc.,
`
`2007 WL 611258, at *4 (N.D.Ill. Feb. 21, 2007)
`
`74.
`
`I’ve been advised that the Federal Circuit upheld the district court’s
`
`construction, relying primarily on the fact that the specification only discloses
`
`manual re-centering. Trading Techs. Int’l, Inc. v. eSpeed, Inc., 595 F.3d 1340,
`
`1352-55 (Fed. Cir. 2006)("This court takes some comfort against this risk [of
`
`improperly reading a preferred embodiment into the claim] from the inventors’ use
`
`of the term ’the present invention’ rather than ’a preferred embodiment’ or just ’an
`
`embodiment.").
`
`:
`
`
`
`75.
`
`I’ve also been advised that TTI proposed and argued, to both the
`
`District Court and the Federal circuit that the following construction is reasonable:
`
`"price levels that do not normally change position when new market data reflecting
`
`a change in the inside market is received." eSpeed, 200
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