UNITED STATES PATENT AND TRADEMARK OFFICE
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`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
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`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
`
`TRADE TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Case CBM2014-00137
`Patent No. 7,685,055
`____________________
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY IN
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,685,055
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`- 1 -
`
`TDA 1023
`TD Ameritrade v. TT
`CBM2014-00137
`
`
`
`
`
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`TD AMERITRADE HOLDING CORPORATION, TD AMERITRADE, INC., and
`TD AMERITRADE ONLINE HOLDINGS CORP.,
`Petitioners
`
`v.
`
`TRADE TECHNOLOGIES INTERNATIONAL, INC.
`Patent Owner
`
`____________________
`
`Case CBM2014-00137
`Patent No. 7,685,055
`____________________
`
`SUPPLEMENTAL DECLARATION OF KENDYL A. ROMÁN
`IN SUPPORT OF PETITIONERS’ REPLY IN
`COVERED BUSINESS METHOD REVIEW OF U.S. PATENT 7,685,055
`
`Mail Stop “PATENT BOARD”
`Patent Trial and Appeal Board
`U.S. Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`- 1 -
`
`TDA 1023
`TD Ameritrade v. TT
`CBM2014-00137
`
`
`
`I, Kendyl A. Román, declare as follows:
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`1.
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`I have been engaged by Sterne, Kessler, Goldstein & Fox P.L.L.C. on
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`behalf of Petitioner, TD Ameritrade Holding Corp., for the above-captioned
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`covered business method review proceeding. I understand that this proceeding
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`involves United States Patent 7,685,055, entitled “System and Method for
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`Automatic Repositioning of Market Information in a Graphical User Interface,” by
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`Harris Brumfield, et al., filed May 3, 2006 and issued March 23, 2010 (“the ’055
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`patent”). I understand that the ’055 Patent is currently assigned to Trading
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`Technologies International, Inc. (“TT”).
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`2.
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`I have reviewed the following documents in making this declaration:
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`a. The ’055 patent.
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`b. The Board’s Decision to Institute issued on December 2, 2014.
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`c. TT’s Patent Owner Response (POR) filed March 6, 2015.
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`d. The translation of record of “System for Buying and Selling Futures
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`and Options Transaction Terminal Operational Guidelines” (“TSE”).
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`(Ex. 1008).
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`e. Harold Abilock’s translation of Chapter 7 of the TSE document,
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`which is attached to his declaration as an Appendix. I concentrated on
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`- 2 -
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`
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`the portions cited herein, but I read the entire chapter. The Abilock
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`declaration is Exhibit 2097 in this proceeding, and his translation of
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`TSE is at pages 74 to 103 of the filed declaration. I also reviewed
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`his revised translation portions of page 7-25 of TSE (i.e., page 0115 of
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`the TSE exhibits 1007 and 1008). Specifically, I reviewed his
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`translation of “bullet 2” (as he calls it), which is the first bullet in the
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`middle of page 7-25 (paragraph 69 at pages 32-33 of his declaration)
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`and the text in the figure at the bottom of page 7-25 (paragraph 77 at
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`page 36 of his declaration).
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`f. My previous declaration in this proceeding (Ex. 1003).
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`g. U.S. Patent No. 5,136,501 to Silverman et al. (“Silverman”), Exhibit
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`1005.
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`3.
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`A computer performing the steps of claim 1 is repeatedly receiving
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`data and then performing repetitive calculations to determine where to display each
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`element, and receiving commands to reposition and adjust the axis. Such repetitive
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`calculations and operations may be performed quickly by a computer, but the
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`claims recite no such requirement. Also, other than the conventional steps of
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`receiving and sending data, claim 1 could be performed by a human using pen-and-
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`paper or a white board. The person could be told the highest bid and offer, which
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`- 3 -
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`
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`he or she could plot along a price axis. If the person wanted to adjust the display
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`as recited in claim 1, he or she could do it by redrawing or merely adding
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`additional price levels to the top or bottom as TT illustrated in the POR at page 9.
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`The person could replot with updated data as it came in. If the data plotted off the
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`existing axis (i.e., came within a set number of prices from either end of the axis),
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`the person could reposition the axis by redrawing it.
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`4.
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`The claims in the ’055 patent recite a static price axis, and I
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`understand that the Board has adopted TD Ameritrade’s proposed construction of
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`that term to mean “a price column where prices do not normally change positions
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`unless a re-centering command is received.” Institution Decision at 13. I apply
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`this definition in this declaration. This “do[es] not normally change positions
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`unless a re-centering command is received” formulation of static price axis is
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`found in the ’055 patent at 8:17-18.
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`5.
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`A static price axis is nothing new. If I were to plot data on graph
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`paper or a white board, the price axis would be static until I replotted the data (the
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`same or updated data) based on a repositioned axis. Likewise, Silverman plots
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`bids and offers on paper to illustrate a book of orders. Silverman FIG. 4 (Ex.
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`1005).
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`- 4 -
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`6.
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`TSE teaches using a static price axis in its uncompressed display. See
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`TSE page 7-17 (page 0107 of Exhibit 1008). TSE also teaches a static price axis
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`when in scroll mode, even if the screen is uncompressed. See TSE at 7-20 (page
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`0110 of Ex. 1008, describing scroll up, scroll down, and Home button which re-
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`centers and transitions back to the basic board screen); 7-25 (page 0115 of Ex.
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`1008, stating that the price display position does not automatically change in scroll
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`mode).
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`7.
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`I have also reviewed Mr. Abilock’s translation of Chapter 7 of
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`portions of pages 7-17, 7-20 and 7-25 (see Ex. 2097 at 90, 93, 98), and it does not
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`change my opinion. These portions of Mr. Abilock’s translation would have
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`conveyed the same teachings to a person of ordinary skill at the time of the
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`purported invention (which is in the mid to late 2000 timeframe).
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`8.
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`As in the previous paragraph, my opinion regarding TSE in the
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`following paragraphs is based on the TSE translation of record (Ex. 1008). But I
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`provide parallel citations to the TSE translation of record and Mr. Abilock’s
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`translation for convenience, because I also reviewed the corresponding portions of
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`Dr. Abilock’s translation (and updated translation for portions of page 7-25), and
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`ensured that each corresponding portion would have conveyed the same teachings
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`- 5 -
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`to a person of ordinary skill in the art despite any differences in phrasing and
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`synonym choice.
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`9.
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`The larger uncompressed screen (display split into just 2 screens, also
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`called the “Board x 2” form) is shown on page 7-17 in TSE, Ex. 1008 at 0108 and
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`Ex. 2097 at 90), which has 20 price levels (see Order Price section towards bottom
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`of TSE page 7-21, Ex. 1008 at 0111 and Ex. 2097 at 94).
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`10.
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`The smaller screens (display split into 4 or 6 screens, “Board x 4” and
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`“Board x 6”) are shown on page 7-18 (Ex. 1008 at 0109, Ex. 2097 at 91). They
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`have 7 price levels (see Order Price section towards bottom of TSE page 7-21, Ex.
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`1008 at 0111 and Ex. 2097 at 94).
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`11.
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`TSE explains that in uncompressed mode, its price axis repositions
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`automatically whenever the central price (i.e., the Board Display Central Price
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`which is determined as shown at the top of page 7-25 in TSE (Ex. 1008 at 0115,
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`Ex. 2097 at 98) exceeds the range of +/- 3 (or +/- 1 for the smaller displays, i.e.,
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`when 4 or 6 screens are shown on a page, instead of just 2) from the center of the
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`display. Or to put it differently, it repositions when the central price exceeds the
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`“Top and Bottom 3 [or 1] Price” range centered around the middle of the display.
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`See TSE at 7-25 second bullet and bottom illustration with description (Ex. 1008 at
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`0115, Ex. 2097 at 98, see also Ex. 2097 ¶ 69 at pages 32-33 and ¶ 77 at page 36).
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`- 6 -
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`12.
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`The following example illustrates TSE’s teaching regarding
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`repositioning based on the price exceeding the six-level range (+/- 3 from the
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`center, i.e., Top and Bottom 3) for the 20-level screen:
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`The above-shaded range is a six-level range with a Top 3 prices and a Bottom 3
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`prices. When the central price exceeds the above-shaded range (the Top or Bottom
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`3 levels of the “floating display area”), it no longer falls within that range, and the
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`bids and offers are re-centered so that the central price is back to the center of the
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`screen. The translation of record is awkwardly worded, but it states that this re-
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`centering occurs when the range (i.e., the “floating display area”) is “exceeded” in
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`the bullet and in the pop-out block of text in the image at the bottom of the page.
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`TSE 7-25 (Ex. 1008 at 0115). Mr. Abilock’s original translation and his updated
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`- 7 -
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`
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`translation convey this same meaning. (Abilock original translation - Ex. 2097 at
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`98, updated translation - Ex. 2097 ¶ 69 at pages 32-33 and ¶ 77 at page 36).
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`13.
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`The TSE disclosures above teach the receiving the repositioning
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`command step of Claim 1 of the ’055 patent. That step recites “receiving the
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`reposition command to reposition the static price axis when a designated price is
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`within a designated number of price levels from the lowest value or the highest
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`value along the static price axis.” The designated price is the “Board Display
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`Central Price” also called the “Central Price in the Board Display” determined in
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`the table at the top of page 7-25 (Ex. 1008 at 0115, Ex. 2097 at 98). Although the
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`claims recite calculating the repositioning threshold from the ends of the axis, one
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`of ordinary skill would have understood the same threshold can also be located by
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`counting from the center of the axis. So for TSE’s display with 20 price levels, the
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`threshold from the Top 3 and Bottom 3 is 7 price levels from the end because there
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`are 10 price levels on each side of the center of the axis (1/2 of 20 is 10), and 10 - 3
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`is 7:
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`- 8 -
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`
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`As a result, when the central price exceeds the inner range of +/- 3 price levels
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`(i.e., it no longer falls within that range), it also comes within (i.e., no longer
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`exceeds) the range of 7 price levels from either end of the axis.
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`14.
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`I also note that the claim recites “receiving the reposition command”
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`when the above-discussed threshold is crossed. The claims do not recite how that
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`command is generated, or by who or what. Accordingly, I conclude that this step
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`is satisfied if the software sends the command (as in TSE) or if a person watching
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`the display manually sends it by clicking a button on the display.
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`- 9 -
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`
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`15. Mr. Abilock’s “translator’s note” on TSE page 7-25 (Ex. 2097 at 98)
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`does not make sense where it is placed. In his translation as well as the translation
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`of record in this proceeding, it is clear that this repositioning is not continuous, but
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`triggered by the central price migrating outside of the floating display area. In
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`contrast, the bullet below discusses TSE’s compressed mode, and expressly states
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`that the repositioning (i.e., “revised and displayed”) is performed continuously, i.e.,
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`each time the updated data migrates from the center.
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`16. Mr. Abilock’s “translator’s note” on TSE page 7-26 (Ex. 2097 at 99)
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`is wrong. According to Mr. Abilock, the text is not clear whether the information
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`updating is in memory only or on the screen as well. One of ordinary skill would
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`have understood from the context that the updating is both -- on the screen and in
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`memory. This section is talking about scrolling the Board (the “range of prices
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`displayed” on the Board screen) that it displayed to the user, and it states that the
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`Board information is updated. One of ordinary skill would have understood this to
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`mean the same Board (i.e., the price information displayed on the screen) that the
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`user is scrolling. This is also made clear by the bullet on page 7-1 that Mr. Abilock
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`translated as “The board information on each Board Screen is automatically
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`updated even if it has been scrolled vertica1ly.” (Ex. 2097 at 74).
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`- 10 -
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`17.
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`I understand that TT contends that the translation of record is not
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`sufficiently accurate, pointing to the translation of “meigara” as “brand,” “saiken”
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`as “securities” and “bond,” “shisuu” as “security” instead of “index,” and various
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`minor errors and small omissions. POR at 40-41. My opinion regarding the
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`teaching of TSE did not turn on any of these alleged errors. For example, the TSE
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`translation of record is clearly referring to trading various equities, exactly what
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`type of equities those are does not matter. I recognize that the translation of record
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`uses the term “brand” to mean a particular equity, e.g., the “select brand” dialog
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`shown at page 7-7 (Ex. 1008 at 0097), reproduced below:
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`- 11 -
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`
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`(Ex. 1008 at 0097). In context, it was clear that the translation was explaining what
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`type of equity to select. It does not matter that it uses the term “brand” instead of
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`“issue” or “securities” instead of “bonds,” as Mr. Abilock did in his original
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`translation. Both convey the same teaching:
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`- 12 -
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`
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`(Ex. 2097 at 80). I further note that Mr. Abilock’s translation is missing the
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`language in the middle bar, which here, could be crucial as it is explaining that the
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`enter (send) key is used to set the desired equity.
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`18. Claim 1 of the patent also recites “adjusting the first plurality price
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`levels among a range of price levels to an adjusted plurality of price levels
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`including the first plurality of price levels.” In other words, the number of
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`displayed price levels is increased -- in addition to the previously displayed price
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`- 13 -
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`
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`levels, more prices levels are also displayed. Many data display manipulations
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`satisfying this claim element were well-known in the art. For example, this is
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`taught by TSE’s shifting from compressed mode to uncompressed mode. It could
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`also be done by changing the scale or by shifting from a logarithmic scale to a
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`linear scale. It can also be done by increasing the length of the axis, but keeping
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`the scale:
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`It can also be accomplished by increasing the granularity of the display:
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`- 14 -
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`
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`All of these were common practices before the purported time of invention.
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`19. A computer performing claim 1 (i.e., receiving the highest bid and
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`ask, displaying them along a price axis, adjusting the axis, repositioning the axis in
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`response to a command) is repeatedly receiving data and then performing repetitive
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`calculations to determine where to display each element. The ’055 patent explains
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`that this can be performed “by any technique known to those skilled in the art.”
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`’055 patent at 6:26-35. Reading the claim as a whole, one of ordinary skill would
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`understand that the display steps (displaying regions and indicators) are typically
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`being repeatedly performed all at once as new data is received and the screen (or
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`portions of the screen) are redrawn. The adjusting step, which is performed “in
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`response to an input command received via an input device,” is performed
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`whenever the user desires to change the display, such as by the slider tool
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`- 15 -
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`
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`discussed in the patent at 33:20 - 34:2. The repositioning is performed whenever
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`the data migrates from the center of the display past the desired threshold.
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`20. With respect to the desired repositioning threshold, the patent does not
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`limit where it may be set. Claim 1 states that the threshold is “when a designated
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`price is within a designated number of price levels from the lowest value or the
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`highest value along the static price axis.” For example, if the designated number
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`of price levels is 7, the threshold is 7 levels from each end of the axis, as in TSE’s
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`larger (20 price level) display.
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`21. Claim 11 recites that the threshold is when the threshold is at the
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`lowest value on the axis, implying that the designated number of price levels in
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`claim 1 is zero.
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`22. Claim 8 recites that the threshold is below the lowest value on the
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`axis, implying that the designated number of price levels in claim 1 is a negative
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`number.
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`23.
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`The claims do not rule out setting the designated number of levels to
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`one-half the length of the axis. That would place the threshold up against the
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`center of the axis, and the reposition command would be sent any time the
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`designated price strays from the center of the axis. This is what happens in TSE’s
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`- 16 -
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`
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`compressed mode. See TSE at 7-25 (Ex. 1008 at 0115, Ex. 2097 at 98), where the
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`central price is continuously repositioned to the center of the display.
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`24.
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`The findings and opinions set forth in this declaration are based on my
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`work and examinations to date. I may continue my examinations. I may also
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`receive additional documentation and other factual evidence over the course of this
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`litigation that will allow me to supplement and/or refine my opinions. I reserve the
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`right to add to, alter, or delete my opinions and my declaration upon discovery of
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`any additional information. I reserve the right to make such changes as may be
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`deemed necessary.
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`25.
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`In signing this declaration, I recognize that the declaration will be
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`filed as evidence in a proceeding before the Patent Trial and Appeal Board of the
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`United States Patent and Trademark Office. I also recognize that I may be subject
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`to cross-examination in the case and that cross-examination will take place within
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`the United States. If cross-examination is required of me, I will appear for cross-
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`examination within the United States during the time allotted for cross-
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`examination.
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`- 17 -
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`26.
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`I hereby declare that all statements made herein of my own
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`knowledge are true and that all statements made on information and belief are
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`believed to be true; and further that these statements were made with the
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`knowledge that willful false statements and the like so made are punishable by fine
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`or imprisonment, or both, under Section 1001 of Title 18 of the United States
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`Code.
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`Executed this 29th day of May 2015 in Sunnyvale, CA.
`
`z///»&i
`
`Kendyl A. Roman
`
`-13-
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