Rho, David
`
`January 27, 2015
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC.,
` and TD AMERITRADE ONLINE HOLDINGS CORP.,
` Petitioners,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner
` __________
` Case CBM2014-00133
` Patent 7,676,411
` Case CBM2014-00135
` Patent 6,772,132
` Case CBM2014-00137
` Patent 6,685,055
` __________
`
` Washington, D.C.
` Tuesday, January 27, 2015
`
` DAVID RHO CROSS-EXAMINATION
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2092
`TD Ameritrade v. Trading Technologies
`CBM2014-00137
`
`Page 1 of 78
`
`
`
`January 27, 2015
`
`1
`
` UNITED STATES PATENT AND TRADEMARK OFFICE
` __________
` BEFORE THE PATENT TRIAL AND APPEAL BOARD
` __________
`TD AMERITRADE HOLDING CORP., TD AMERITRADE, INC.,
` and TD AMERITRADE ONLINE HOLDINGS CORP.,
` Petitioners,
` v.
` TRADING TECHNOLOGIES INTERNATIONAL, INC.,
` Patent Owner
` __________
` Case CBM2014-00133
` Patent 7,676,411
` Case CBM2014-00135
` Patent 6,772,132
` Case CBM2014-00137
` Patent 6,685,055
` __________
`
` Washington, D.C.
` Tuesday, January 27, 2015
`
` DAVID RHO CROSS-EXAMINATION
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`TRADING TECH EXHIBIT 2092
`TD Ameritrade v. Trading Technologies
`CBM2014-00137
`
`Page 1 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`2
`
` Cross-Examination of DAVID RHO, a
`witness herein, called for examination by counsel
`for Patent Owner in the above-entitled matter,
`pursuant to notice, the witness being duly sworn by
`SUSAN L. CIMINELLI, CRR, RPR, a Notary Public in and
`for the District of Columbia, taken at the offices
`of Sterne, Kessler, Goldstein & Fox, PLLC, 1100 New
`York Avenue, N.W., Washington, D.C. at 11:10 a.m.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 2 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`3
`
`APPEARANCES:
` On behalf of the Patent Owner:
` JOSHUA L. GOLDBERG, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` 901 New York Avenue, N.W.
` Washington, D.C. 20001
` (202) 408-6092
` joshua.goldberg@finnegan.com
` -and-
` CORY C. BELL, ESQUIRE
` Finnegan, Henderson, Farabow, Garrett &
` Dunner, LLP
` Two Seaport Lane
` Boston, MA 02210-2001
` (617) 646-1641
` cory.bell@finnegan.com
` On behalf of the Petitioners:
` LORI A. GORDON, ESQUIRE, DIRECTOR
` RICHARD M. BEMBEN, ESQUIRE
` Sterne Kessler Goldstein Fox
` 1100 New York Avenue, N.W.
` Washington, D.C. 20005
` (202) 371-2600
` lgordon@skgf.com
` rbemben@skgf.com
`
`1
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`16
`17
`18
`19
`20
`21
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 3 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`4
`
` C O N T E N T S
`DAVID RHO EXAMINATION
` By Mr. Goldberg 5
`
` Afternoon Session - Page 43
`
` E X H I B I T S
`EXHIBIT NO. PAGE NO.
`Exhibit Trading Tech 2085 LinkedIn Page 7
`Exhibit Trading Tech 2086 Firm Profile 8
`Exhibit TDA 1014 CV Rho 8
`Exhibit TDA 1001 7.685,055 Patent 23
`Exhibit TDA 1004 Declaration '055 28
`Exhibit TDA 1015 Materials Considered 33
`Exhibit Trading Tech 2087 Directory of Software
` Solutions LIFE
` CONNECT 46
`
`*Exhibit Trading Tech 2087 retained by Counsel for
`Patent Owner
`
`1
`
`2
`
`3
`
`4 5
`
`6 7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 4 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`5
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` P R O C E E D I N G S
`Whereupon,
` DAVID RHO,
`was called as a witness by counsel for Patent Owner,
`and having been duly sworn, was examined and
`testified as follows:
` EXAMINATION BY COUNSEL FOR PATENT OWNER
`BY MR. GOLDBERG:
` Q. Good morning, Mr. Rho.
` A. Good morning.
` Q. Could you please state your full name and
`address for the record?
` A. My name is David Rho. I live at 32
`Lylewood Drive in Tenafly, New Jersey, 07670.
` Q. And do you understand that you're under
`oath this morning?
` A. I do.
` Q. And that this means you are sworn to tell
`the truth as if you were in a courtroom with a judge
`and jury?
` A. I do.
` Q. Have you taken any medication today that
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 5 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`6
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`would prevent you from giving me full and truthful
`answers?
` A. Not to my knowledge. No.
` Q. And to your knowledge, is there anything
`that will prevent you from giving me full and
`truthful answers today?
` A. To my knowledge, no.
` Q. Have you been deposed before?
` A. No. I have not.
` Q. So I'll give you a little background then
`on how this is going to go. Basically, I'm just
`going to ask you some questions. To the extent that
`you don't understand anything I ask, I want you to
`please let me know. Is it okay for me to assume
`that you understand what I asked if you don't ask me
`to clarify?
` A. Well, I still -- I would always reserve
`the right to change my answer afterwards if I
`suddenly come to a realization that I did not
`understand.
` Q. If you recognize that you don't
`understand the question before you begin your
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 6 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`answer, will you let me know that you do not
`understand the question?
` A. If I recognize it beforehand, yes, I
`will. I will let you know.
` Q. Thank you. So we are going to try and
`take breaks about every 60 minutes or, so if you
`feel like you need a break at any time, just let me
`know. I'll ask that you finish whatever answer
`you're giving, respond to the question that's on the
`table, but after you do so, we can break pretty much
`any time, so don't feel like you need to keep going
`or anything. Just let me know.
` A. Okay.
` Q. We can stop for lunch around 12, 12:30,
`1:00, whatever you want.
` A. Okay.
` (Trading Tech Exhibit No. 2085 was
` marked for identification.)
`BY MR. GOLDBERG:
` Q. I'm handing you what we marked as Trading
`Technologies Exhibit 2085. And for the record, this
`has been marked as Exhibit 2085 and CBM2014-00133,
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 7 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`8
`-00135 and -00137. Do you recognize this document,
`Exhibit 2085?
` A. I believe I do. Yes.
` Q. What is the document marked as Exhibit
`2085?
` A. This appears to be -- let me just make
`sure. This appears to be my LinkedIn profile,
`especially based on the URL that's listed at the
`bottom.
` Q. Thank you.
` (Trading Tech Exhibit No. 2086 was
` marked for identification.)
`BY MR. GOLDBERG:
` Q. Mr. Rho, I'm going to hand you what's
`been marked Trading Technologies Exhibit 2086, and
`again, this has been marked Exhibit 2086 in
`CBM2014-00133, 00135 and 00137. Do you recognize
`this document marked as Exhibit 2086?
` A. Yes. I do.
` (TDA Exhibit No. 1014 was
` marked for identification.)
`BY MR. GOLDBERG:
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 8 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` Q. And Mr. Rho, I'm now handing you what's
`been marked as TD Ameritrade Exhibit 1014. Do you
`recognize this document?
` A. Yes. I do.
` Q. And just to be clear, this is Exhibit
`1014 in CBM2014-00137. CBM U.S. Patent Number
`7,685,055. Mr. Rho, I want to draw your attention
`to the second paragraph in the March 1st section of
`Exhibit 1014.
` A. March 1st. Okay. Just to be clear, what
`is the first words of that paragraph.
` Q. Evaluated.
` A. Evaluated. Okay.
` MS. GORDON: Where are you looking?
` MR. GOLDBERG: In the March 1st section,
`the name of the company.
` MS. GORDON: I was looking at the date.
`I apologize.
` THE WITNESS: Yes. That was always a
`confusing piece.
`BY MR. GOLDBERG:
` Q. So Mr. Rho, do you see in Exhibit 1014
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 9 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`10
`where it says that you "evaluated and designed the
`trading system for a pan-European Exchange?
` A. Yes. I do.
` Q. Now let's look back to Exhibits 2085 and
`2086, your LinkedIn and your firm profile. Do you
`see the paragraph that begins with evaluated in the
`second paragraph of your firm profile, Exhibit 2086?
` A. Evaluated a trading system for a
`pan-European Exchange. Yes.
` Q. Right. And now in your LinkedIn profile,
`Exhibit 2085, do you see the paragraph that begins
`with evaluated at the bottom of the first page of
`this exhibit?
` A. Evaluated the trading system technology
`for pan-European Exchange.
` Q. So the evaluate paragraph in Exhibit
`1014, your CV, for CBM 2014-00137 differs from the
`evaluate paragraphs in Exhibits 2085 and 2086, your
`LinkedIn and firm profiles, in that it mentions you
`"designed" the trading system, right?
` A. Yes. There is a difference.
` Q. Why did you mention that you designed the
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 10 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`11
`trading system in your CV for CBM2014-00137, but not
`in your LinkedIn or firm profiles?
` A. Can you -- I'm sorry. Can you further
`clarify?
` Q. Yes. In your CV, in Exhibit 1014, you
`said that you evaluated and designed the trading
`system. Right?
` A. Correct.
` Q. In contrast, in your LinkedIn and firm
`profiles, you did not say that you designed the
`trading system. You only mentioned that you
`evaluated the trading system, right?
` A. Correct.
` Q. So why did you mention that you designed
`the trading system in your CV for these proceedings,
`but you didn't mention anything about designing the
`system in your LinkedIn and firm profiles?
` A. I am -- I am not sure.
` Q. Did you prepare Exhibit 1014, your CV in
`these proceedings?
` A. I prepared this CV. That is correct.
` Q. When you prepared this CV, did you start
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 11 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`12
`with an earlier version that you had prepared in the
`past?
` A. I can't be 100 percent certain of that,
`but it's likely that that occurred. Yes.
` Q. Do you recall when you prepared this CV
`for Exhibit 1014 for these proceedings?
` A. This particular CV was likely done
`sometime in the first half of 2014.
` Q. And had you ever prepared a CV before
`2014?
` A. Yes. I have.
` Q. Do you recall when you prepared your
`LinkedIn profile, Exhibit 2085?
` MS. GORDON: Objection. Foundation.
` THE WITNESS: I don't recall when I
`developed that.
`BY MR. GOLDBERG:
` Q. Did you prepare the profile, your firm
`profile, Exhibit 2086?
` A. What do you mean by prepare?
` Q. Did you write the text included in your
`firm profile, Exhibit 2086?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 12 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`13
` A. I likely did. Yes. But I can't be 100
`percent certain about that.
` Q. Is there someone else that you suspect
`may have written the text in your firm profile,
`Exhibit 2086?
` A. It's possible that somebody else may have
`edited it.
` Q. Did anyone edit your CV, Exhibit 1014, in
`these proceedings?
` A. I don't recall.
` Q. So sitting here today, you do not
`remember how the design the trading system language
`in your CV, Exhibit 2014, got there?
` MS. GORDON: Objection. Mischaracterizes
`his testimony.
` THE WITNESS: Do I recall? I'm sorry.
`Could you repeat the question? I lost my train of
`thought. I apologize.
`BY MR. GOLDBERG:
` Q. Did you write the words designed the
`trading system in Exhibit 1014, your CV in these
`proceedings?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 13 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`14
` A. Did I write them? It's possible. It's
`very likely.
` Q. What do you mean -- strike that. If you
`didn't write the words designed the trading system
`in your CV, Exhibit 1014 in these proceedings, would
`you have reviewed those words before letting TD
`Ameritrade represent that this was your CV?
` MS. GORDON: Objection. Form.
` THE WITNESS: Could you clarify?
`BY MR. GOLDBERG:
` Q. Would you let someone represent -- sorry.
`Strike that. Did you review your CV, Exhibit 1014,
`in these proceedings, before you signed a
`declaration in these proceedings?
` A. I would have reviewed it prior to it
`being sent to the attorneys, and there may have been
`some time that it sat between my review and my
`signing of the declaration. I don't know the exact
`time frame.
` Q. Is the statement in your CV, Exhibit
`1014, that you evaluated and designed the trading
`system for a pan-European Exchange accurate?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 14 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`15
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` A. I believe it to be accurate.
` Q. What does it mean when your CV -- strike
`that.
` You mentioned that it is accurate that
`you designed the trading system for a pan-European
`Exchange. What did you design for -- what parts of
`the trading system for a pan-European Exchange did
`you design?
` MS. GORDON: Mr. Rho, before you answer,
`I just caution you not to disclose any confidential
`third party details of your answer.
` THE WITNESS: Well, a trading system
`itself has multiple parts. And the specific parts
`that I was directly involved in the design or that I
`assisted in the design, that was quite a while ago,
`and I'm not quite sure which actual pieces I was
`involved in, but I was involved.
`BY MR. GOLDBERG:
` Q. So you said it was quite a while ago.
`When was it that you were involved in the design of
`the trading system for the pan-European Exchange?
` A. That was in the early 2000s, early to mid
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 15 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`16
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`2000s.
` Q. Were you involved in the design of the
`European -- were you involved in the design of the
`trading system for the pan-European Exchange in the
`year 2000?
` A. In the year 2000. That's what I was
`referring to. The year 2000.
` Q. And were you still involved in the design
`of the European -- of the trading system for the
`pan-European Exchange in the year 2001?
` A. No. We were not retained at that time.
` Q. What year did your involvement in the
`design of the trading system for the pan-European
`Exchange begin?
` A. What year?
` Q. Yes.
` A. It began in the year 2000.
` Q. Do you recall how many months during the
`year 2000 you were involved in the design of the
`trading system for the pan-European Exchange?
` A. I was involved in that project for
`approximately eight and a half months.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 16 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`17
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` Q. And during that 8.5 months, were you
`working on any projects other than the design of the
`trading system for the pan-European Exchange?
` A. During the eight and a half months, it
`was possible that I did short or very brief -- or
`that I had very brief involvement in other projects,
`but my primary task during that eight and a half
`months was working with this exchange.
` Q. So going back to your CV, Exhibit 1014,
`it indicates that you evaluated and designed the
`trading system for pan-European Exchange. What
`percentage of the time during that 8.5 months were
`you evaluating the trading system?
` A. I'm sorry. You need to clarify that one.
`That one is very difficult. This is a very
`difficult metric to -- you have to be very clear
`what you're asking for in this metric.
` Q. Do you understand the words evaluate and
`design to have different meanings?
` A. Do I understand them to have different
`meanings. Okay. From a consulting perspective,
`these two are not necessarily what we refer to as
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 17 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`18
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`MECE, mutually exclusive collectively exhaustive.
`So do they have different meanings, I guess from a
`dictionary perspective, they have different
`meanings, but they are -- from the context that is
`being read from my CV, there is a lot of overlap, so
`that's why I'm asking for further clarification.
` Q. Let's look a little bit further down in
`the evaluated and designed paragraph of your CV,
`Exhibit 1014. Do you see where it says that you
`created a configuration guide for the specific
`implementation of TIB exchange?
` A. Created a configuration guide for the
`specific implementation of TIB exchange focusing on
`areas critical for launch, as well as providing a
`methodology for future growth. Is that the
`sentence?
` Q. Yes. About how much of your time during
`the eight and a half months that you worked on the
`trading system for pan-European Exchange was devoted
`to creating the configuration guide?
` A. I don't recall.
` Q. Do you recall whether more than half of
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 18 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`19
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`the time during your eight and a half months that
`you worked on the trading system for the
`pan-European Exchange was devoted to creating the
`configuration guide?
` A. Do I recall? Yes. I recall.
` Q. Was more than half of the time during
`your eight and a half months that you worked on the
`trading system for the pan-European Exchange devoted
`to creating the configuration guide?
` A. No.
` Q. Was more than a quarter of the time
`during your eight and a half months that you worked
`on the trading system for the pan-European Exchange
`devoted to creating the configuration guide?
` A. I'm not 100 percent certain, but I do not
`believe that more than a quarter of my time was
`spent doing this activity.
` Q. Mr. Rho, by my count, the created a
`configuration guide sentence of the evaluated and
`designed paragraph in Exhibit 1014 is the fourth
`sentence in that paragraph. Do you agree?
` A. Yes. It is the fourth sentence.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 19 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`20
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` Q. And the first sentence includes the
`evaluated and -- evaluated and designed the trading
`system language, right?
` A. The first sentence includes the evaluated
`and designed. Yes.
` Q. Why did you include the evaluated and
`designed language in the first sentence, but you
`included the created a configuration guide language
`in the fourth sentence?
` A. Why? I don't recall.
` Q. At the end of the evaluated and designed
`sentence in Exhibit 1014, you indicated that it had
`a focus on capacity, scaleability and risks, right?
` A. That is the three words I used at the
`end. Yes.
` Q. Did you focus on capacity, scaleability
`and risks when you were evaluating and designing the
`trading system for the pan-European Exchange?
` A. Those may have been my primary focus, but
`they wouldn't have been my only focus.
` Q. What else did you focus on when you were
`designing and evaluating the trading system for the
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 20 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`21
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`pan-European Exchange?
` A. I was in general taking a holistic
`approach, so while these may have been some of my
`primary focus items, I was still looking at the
`entire system as a whole.
` Q. Beyond the capacity, scaleability and
`risk items, what items were you looking at in the
`trading system for pan-European Exchange?
` A. So one of the other items that I might
`have been -- that I was looking at were interfaces,
`so things such as the API. That was certainly one
`thing I looked at.
` Q. Can you explain what you mean by API?
` A. So the API is short for application
`programmer's interface, and that was a method for
`people -- or excuse me, firms that wished to connect
`to the trading system using their own trading
`software, hardware, et cetera, so that they could
`utilize their own trading systems, as opposed to
`using the trading system that was provided by the
`exchange.
` Q. So who accessed -- sorry -- strike that.
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 21 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`22
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`Did individuals placing trades access user
`interfaces of the trading system you evaluated and
`designed for the pan-European Exchange?
` A. I'm sorry. Could you repeat that
`question?
` Q. Did individuals placing trades access
`user interfaces of the trading system you evaluated
`and designed for the pan-European Exchange?
` A. It's possible, but I don't have direct
`knowledge of that.
` Q. Did the technologies you evaluated and
`designed for the trading system for the pan-European
`Exchange differ from the technology in the claims in
`the '055 patent?
` MS. GORDON: Objection. Relevance.
` THE WITNESS: I did not opine on that.
`If you would like me to sit here and think about
`that for a while, and I would actually prefer to
`have some additional materials. If you have any
`additional materials, especially related to this
`particular pan-European Exchange, then I could give
`you an opinion. But I can't give you an opinion on
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 22 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`23
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`that. I'm sorry.
`BY MR. GOLDBERG:
` Q. Okay, Mr. Rho, I'm not asking you for an
`opinion on the pan-European Exchange in general.
`I'm just asking about your -- what you did when you
`were working on the systems for the pan-European
`Exchange. I am handing you now what's been marked
`as TD Ameritrade Exhibit 1001 in the CBM '055
`patent?
` MS. GORDON: I'm going to object to the
`extent you were testifying on the record that that
`wasn't a question.
` (TDA Exhibit No. 1001 was
` marked for identification.)
` THE WITNESS: Could you repeat the
`question again then, please?
` MS. GORDON: There is no question
`pending.
`BY MR. GOLDBERG:
` Q. Mr. Rho, did the technologies you
`evaluated and designed for the trading system for
`the pan-European Exchange differ from the technology
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 23 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`24
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`in the claims in the '055 patent?
` MS. GORDON: Objection. Scope.
`Objection. Relevance.
` THE WITNESS: Well, it would depend on
`the actual implementation that the -- that the
`broker would utilize, but in any meaningful way, was
`there any difference? I don't think there was
`actually any meaningful difference between what is
`being displayed in figure 1 of the patent, the '055
`patent and what the exchange -- the exchange system
`that I dealt with, the trading system.
`BY MR. GOLDBERG:
` Q. Mr. Rho, is figure 1 of the '055 patent
`displaying a user interface?
` A. Figure 1. The closest that it has to a
`user interface is the fact that you have these
`client workstations at the bottom.
` Q. Let's turn to claim 1 of the '055 patent,
`column 34. Mr. Rho, do you see where it says a
`method for repositioning a static price axis on a
`graphical user interface for displaying market
`information of a commodity being traded at an
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 24 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`25
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`electronic exchange?
` A. Yes. I see that.
` Q. Have you ever designed a graphical user
`interface for displaying market information of a
`commodity being traded at an electronic exchange?
` A. I'm sorry. Could you repeat? I
`apologize. Could you repeat that?
` Q. Have you ever designed a graphical user
`interface for displaying market information of a
`commodity being traded at an electronic exchange?
` A. Have I ever designed. If we are going to
`stay narrowly focused on the fact that it has to be
`a commodity, then the answer would be no. But at
`this exchange, I also did help with the trading
`front end that was being developed by the exchange,
`which was -- it was a pan-European Exchange. This
`one happened to trade stocks, and not commodities.
` Q. What do you mean by you helped with the
`trading front end that was being developed by the
`exchange?
` A. Well, I worked with the developers that
`were developing the trading front end for this
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 25 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`26
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`exchange.
` Q. What was your relationship to the
`developers that were developing the trading front
`end for the exchange?
` A. It was much like my relationship with the
`exchange. It was as a consultant.
` Q. About how much of your time during the
`eight months that you spent working on the
`pan-European Exchange did you spend working with the
`developers that were developing the trading front
`end for the exchange?
` MS. GORDON: Objection. Mischaracterizes
`his prior testimony.
` THE WITNESS: I don't recall.
`BY MR. GOLDBERG:
` Q. Do you recall whether you spent more than
`half of your time while you were working on the
`pan-European Exchange working with developers that
`were developing the trading front end for the
`exchange?
` A. Yes.
` Q. Did you spend more than half of your time
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 26 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`27
`while you were working on the pan-European Exchange
`working with developers that were developing the
`trading front end for the exchange?
` A. No. I did not.
` Q. Did you spend more than a quarter of your
`time while you were working on the pan-European
`Exchange working with developers that were
`developing the trading front end for the exchange?
` A. I can't -- I can't remember 100 percent,
`but it was likely that I spent less than 25 percent
`of my time.
` Q. I think now would be a good time to take
`a break. We can either do a short 10-minute break
`or we can break for lunch. I'll defer to the
`witness.
` A. 10-minute break is fine.
` (Recess.)
`BY MR. GOLDBERG:
` Q. Welcome back, Mr. Rho. Did you discuss
`anything with counsel for TD Ameritrade during the
`break?
` A. No. I did not.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 27 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`28
` Q. And do you understand that you're still
`under oath?
` A. Yes. I do.
` Q. I'm handing you a copy of what's been
`marked as Exhibit 1004 in CBM2014-00137.
` (TDA Exhibit No. 1004 was
` marked for identification.)
`BY MR. GOLDBERG:
` Q. Do you recognize this document, Exhibit
`1004?
` A. Yes. I do.
` Q. What is this Exhibit 1004?
` A. This is my signed declaration.
` Q. Just to clarify, it's your signed
`declaration in the proceeding regarding the '055
`patent, right?
` A. The '055 patent. That is correct.
` Q. Did you prepare this document, Exhibit
`1004?
` A. Could you clarify?
` Q. Did you write the text in this document,
`Exhibit 1004?
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 28 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`29
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` A. This document was the culmination of a
`great deal of back and forth and work between myself
`and the attorneys.
` Q. Do you know who wrote the text in this
`document, Exhibit 1004?
` MS. GORDON: Objection, privilege.
`Objection. Work product.
` MR. GOLDBERG: Counsel, I understand your
`objection, but I'm not asking for any details at
`this point. I'm just asking who wrote a document
`that he signed. I think that it's appropriate for
`the Board to know whether he actually wrote this or
`whether somebody else wrote this, and thus far he
`has not answered me.
` MS. GORDON: And I would caution again
`counsel from testifying on the record, but you --
`your question lacks foundation. You never
`established that he didn't write this document. He
`indicated that it was a collaboration, and to the
`extent you're getting beyond details of the
`privilege and the work product, I think it's beyond
`what you're allowed to ask this witness. You can
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 29 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`30
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`ask him what attorneys he worked with.
` MR. GOLDBERG: Counsel, I asked him if he
`wrote the declaration. He didn't answer me.
` MS. GORDON: He did answer you.
` MR. GOLDBERG: He did not indicate
`whether or not he wrote the declaration.
` MS. GORDON: He answered your question.
` MR. GOLDBERG: I asked him who wrote it
`and you objected.
` MS. GORDON: Right. And I maintain my
`objection.
` MR. GOLDBERG: Are you instructing the
`witness that he cannot tell us whether he wrote his
`declaration?
` MS. GORDON: He already answered that
`question. You asked him the question and he
`answered that it was a collaboration, a
`collaborative work effort between himself and the
`attorneys. He answered your question.
`BY MR. GOLDBERG:
` Q. Mr. Rho, did you write any text in your
`declaration, Exhibit 1004?
`
`202-220-4158
`
`Henderson Legal Services, Inc.
`www.hendersonlegalservices.com
`
`Page 30 of 78
`
`
`
`Rho, David
`
`January 27, 2015
`
`31
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
` A. Yes.
` Q. Which text did you write in Exhibit 1004?
` A. Quickly, quickly leafing through th
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
