`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`I
`2407
`
`TRADING TECHNOLOGIES INTERNATIONAL,)
`INC. ,
`)
`)
`)
`)
`) No. 04 C 5312
`)
`eSPEED, INC., eSPEED INTERNATIONAL,)
`LTD., ECCO LLC, and ECCOWARE, LTD.,)
`)
`)
`
`Plaintiff,
`
`v.
`
`Defendants.
`
`Chicago, Illinois
`September 27, 2007
`9:45 o'clock a.m.
`
`VOLUME 12-A
`TRIAL TRANSCRIPT OF PROCEEDINGS
`BEFORE THE HONORABLE JAMES B. MORAN, and a JURY
`
`APPEARANCES:
`
`Trading Technologies
`In tern a tional, Inc. , by:
`
`and
`
`f\LE.O
`MIW 3 0 zoos T C
`
`NIICI'IAEL WIB~~:~~g:Yftf
`CLtiR~. u.s. D .
`
`TRADING TECHNOLOGIES
`INTERNATIONAL, INC. ,
`MR. STEVEN F. BORSAND
`222 South Riverside Drive
`Chicago, Illinois 60606
`312-476-1000
`steve.borsand@
`tradingtechnologies.com
`
`McDONNELL, BOEHNEN, HULBERT &
`BERGHOFF, LTD.
`MR. PAUL H. BERGHOFF
`MR. S. RICHARD CARDEN
`MR. CHRISTOPHER M. CAVAN
`MR. MICHAEL D. GANNON
`MS. JENNIFER M. KURCZ
`MR. MATTHEW J. SAMPSON
`MR. LEIF R. SIGMOND
`300 South Wacker Drive
`Chicago, Illinois 60606
`312-913-0001
`berghoff@mbhb.com
`kurcz@mbhb.com
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`0001
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`TDA 1026
`TD Ameritrade v. TT
`CBM2014-00137
`
`
`
`eSpeed, Inc., eSpeed
`International, Inc.,
`Ecce LLC, Eccoware,
`LTD., by:
`
`I
`2408
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`WINSTON & STRAWN
`MR. GEORGE c. LOMBARDI
`MR. RAYMOND c. PERKINS
`MR.
`IMRON T. ALY
`MR. KEVIN BANASIK
`MS. ELIZABETH HARTFORD
`ERICKSON
`MR. ANDREW M.
`JOHNSTONE
`MS. TRACEY J. ALLEN
`MR. JAMES M. HILMERT
`35 West Wacker Drive
`Chicago, Illinois 60601
`312-558-5600
`glombardi@winston.com
`rperkins@winston.com
`
`LAW OFFICES OF
`GARY A. ROSEN, P.C.
`MR. GARY A. ROSEN
`1831 Chestnut Street, Suite 802
`Philadelphia, Pennsylvania 191
`215-972-0600
`
`Rosenthal Collins Group, DOWELL BAKER
`LLC, by:
`MR. GEOFFREY A. BAKER
`201 Main Street
`Lafayette, IN 47901
`765-429-4004
`gabaker@dowellbaker.com
`
`Court Reporter:
`
`MS. CAROLYN COX, CSR, RPR, CRR
`Official Court Reporter
`219 S. Dearborn Street, Suite 1854-B
`Chicago, Illinois 60604
`(312) 435-5639
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`2409
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`DAVID SILVERMAN, DIRECT EXAMINATION CONTINUED
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`2418
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`BY MR. PERKINS:
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`DAVID SILVERMAN, CROSS-EXAMINATION
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`BY MR. SIGMOND:
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`CROSS EXAMINATION
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`BY
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`REDIRECT EXAMINATION
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`BY MR.
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`RECROSS EXAMINATION
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`DIRECT EXAMINATION
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`CROSS EXAMINATION
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`BY MR. GANNON
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`REDIRECT EXAMINATION
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`BY MR. LOMBARDI
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`0003
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`__ 15,09,18
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`screen?
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`A. Yes.
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`Q. And what is your opinion on that?
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`A. Yes, it would be obvious to add single-action to
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`any trading screen based on what the practitioners knew
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`at the time, and the many examples in the prior art that
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`already show single-action with a variety of trading
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`screens.
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`Q. Okay.
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`15,09,33 10
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`Now, have we actually asked you to look at one
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`15,09,36 11
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`trading screen in particular as part of your work in
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`15,09,39 12
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`this case?
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`15,09,39 13
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`A. Yes.
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`15,09,39 14
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`Q. And which trading screen is that that we have
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`15,09,41 15
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`asked to you look at?
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`15,09,42 16
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`A. Tokyo Stock Exchange system.
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`15,09,46 17
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`Q. What is the source of your information about the
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`15,09,49 18
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`Tokyo Stock Exchange system?
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`15,09,53 19
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`A.
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`I was given a set of translations of the user
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`15,09,59 20
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`system for the Tokyo Stock Exchange.
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`15,09,59 21
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`The original is in Japanese and I don't read
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`15,10,03 22
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`Japanese, so I used a set of translations. Some were
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`15,10,07 23
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`prepared by Trading Technologies, some were prepared by
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`15,10,10 24
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`eSpeed translators, and I used all of those documents
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`'.5,10,15 25
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`and compared them to arrive at an understanding of what
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`0004
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`the document meant.
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`Q. And just for the record, with your binder, just
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`so we have this, would you identify the Japanese version
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`of the manual so we have that?
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`A. Sure.
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`The Japanese version of the manual is DTX 179.
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`Q. Okay.
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`And then the translation we are going to use
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`today is the one that you obtained from eSpeed; is that
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`15,10,48 10
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`right?
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`15,10,48 11
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`A. That is correct.
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`15,10,48 12
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`Q.
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`If we can put up on the screen, DTX 2101, please.
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`15,10,57 13 And if we can blow that up.
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`15,10,59 14
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`Can you either see the screen or have it in front
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`15,11,03 15
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`you?
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`15,11,03 16
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`A.
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`I have it.
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`15,11,04 17
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`Q. What is that first page?
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`15,11,05 18
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`A.
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`The first page of this translation is a
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`15,1L09 19
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`certification by the company that performed the
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`15,11,12 20
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`translation. They are listing -- well it states, This
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`15,1L16 21
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`is to certify that the attached translation is, to the
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`15,11,19 22 best of my knowledge and belief, a true and accurate
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`15,11,22 23
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`translation from Japanese into English of the following
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`pages of the Bates ranges.
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`1_5,11,27 25
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`Then there is a long list of the numbered pages
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`0005
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`
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`2587
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`(
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`. 15'll,33
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`15,1L33
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`15,1L39
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`15'll'39
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`15dL39
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`15,ll,42
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`15,1L42
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`15,1L47
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`15'll'48
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`from the Japanese manual.
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`Q. And Bates pages, you understand to be pages that
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`people in litigation put at the bottom of a page; is
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`that right?
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`A. Right, those numbers are the Bates numbers.
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`Q. All right.
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`Do you have an understanding why the translation
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`is done in those clumps of pages?
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`A. Yes,
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`two reasons.
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`15'll'5o 10
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`First, the document came from the Tokyo Stock
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`15,1L58 11 Exchange initially in portions. They first sent the
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`15,ll,59 12
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`portions that they thought were most important,
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`15,12,02 13 particular chapters or sections, and then subsequently
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`15,12,04 14
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`they sent the entire manual. That is one part of it.
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`15,12,08 15
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`Then the second part is, big sections of this
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`15,12,13 16 manual are not related to this case, and the cost of
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`15,12,15 17
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`translating from Japanese to English is very high, and
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`15,12,19 18
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`so only sections that are related to the topic here were
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`15,12,23 19
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`translated.
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`15,12,23 20
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`So there are places in the manual where chapters
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`15,12,26 21 were not relevant and were not translated.
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`15,12,28 22
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`Q. Okay.
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`15,12,29 23
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`So in the document marked as DTX 2101, which the
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`15,12,35 24
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`with the certification, it is fair to say that the
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`1.5:12:37 25
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`pages are not necessarily in the order that they would
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`0006
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`have appeared in a complete manual; is that right?
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`A. Right.
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`Q. And have we put together with the same pages,
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`just putting them in the proper order, a document?
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`A. Yes.
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`Q. And I will show you what has been marked as DTX
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`2101-A.
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`Is that what that document is?
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`A.
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`2101-A is the translation of the Tokyo Stock
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`Exchange user's manual.
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`It is titled, Futures Option
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`Trading System: Guidelines For Operating the Trading
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`Terminals by the Tokyo Stock Exchange.
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`Q. Okay. All right.
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`So, you said that there are multiple translations
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`done in this case; is that right?
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`A. That is correct.
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`Q.
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`In looking at the multiple translations do you
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`find anything in any of them that contradicted your
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`ultimate conclusion?
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`A. No.
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`Q. Were they all consistent on the important points?
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`A. They are consistent in translation.
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`Q. Okay.
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`A. There is one version of the two provided by
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`Trading Technologies where the translator mentioned that
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`0007
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`2589
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`he was uncertain of the meaning of a couple of phrases.
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`Q. And did that effect your opinion at all?
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`A. No, because the other translation that they
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`provided was not -- did not have any questions in
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`consistency and the actual phrases translated by the
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`gentleman were the same meaning as in the other
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`documents.
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`Q. Okay.
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`Let's jump into the document.
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`If we can go back
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`15,14,07 10
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`to the 2101, Daniel, Bates Page 628.
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`15'14'22 11
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`I will put it on the ELMO.
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`It may be easier that
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`15,14,25 12 way.
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`15,14,25 13
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`Is this the cover page of the Tokyo Stock
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`15,14,34 14 Exchange manual, the translated version?
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`15,14,37 15
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`A. Yes.
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`15,14o40 16
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`Q. Let's show the date, we will go in a couple
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`15,14,43 17
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`pages.
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`15,14,43 18
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`Do you see the date there?
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`15,14o45 19
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`A. Correct, August, 1998.
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`15,14,52 20
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`Q. Okay.
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`15,14,53 21
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`The manual, I
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`take it, tells us something about
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`15,14,59 22
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`the way that the Tokyo Stock Exchange system functions;
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`15,15,00 23
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`is that right?
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`15,15o00 24
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`A. Yes, it does.
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`ยท.5,15o01 25
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`Q. Okay.
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`1
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`0008
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`Q. Okay.
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`A.
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`All of those claims
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`are
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`obvious.
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`Q. We are looking at 3659, right?
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`A. Yes.
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`MR. LOMBARDI: Thank, Your Honor.
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`CROSS EXAMINATION
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`BY MR. GANNON:
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`Q. May it please the Court.
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`Good afternoon, Mr. Dezmelyk.
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`16,30,25 10
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`Do you recall me taking your deposition in this
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`16,30,]0 11
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`case?
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`16,30,30 12
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`A. Yes, I do. Good afternoon.
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`16,30,31 13
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`Q. Mr. Dezmelyk, you never designed or developed
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`16,30,33 14
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`graphical user interfaces for electronic trading; is
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`16,30,39 15
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`that correct?
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`16,30,39 16
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`A. That is correct.
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`16,30,39 17
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`Q. And you have no experience in electronic trading
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`16,30,45 18 prior to this case; is that correct?
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`16,30,45 19
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`A. That is correct.
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`16,30,45 20
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`Q. And you are not a trader yourself, right?
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`16,30,49 21
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`A. No.
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`16,30,49 22
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`Q. And you have never traded on an electronic
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`16,30,51 23
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`exchange interface?
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`16,30,53 24
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`A. No,
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`I have not.
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`'.6,30,54 25
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`Q. And you are not an expert in electronic trading?
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`0009
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`A. No, I am not.
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`Q. And in preparing your opinions in this case, you
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`did not talk to any electronic traders, correct?
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`A. No,
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`I didn't.
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`Q. Now, you are aware of the fact that an
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`obviousness analysis can take into account secondary
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`considerations, such as commercial success, copying,
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`initial skepticism, widespread praise, and licensing of
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`the invention, correct?
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`16 '31' 26
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`10
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`A. Yes, those are some of the secondary
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`16,31,26 11
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`considerations that can be evaluated.
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`16 ,3L27 12
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`Q. And informing your opinion of obviousness, you
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`16 ,3L34 13 didn't take into account a single secondary
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`16,3L34 14
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`consideration; is that correct?
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`16,31,37 15
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`A. No, that is not correct.
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`16,3L38 16
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`I
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`looked at them and realized that none of them
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`16,31,44 17
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`could effect the outcome. That is, to whatever extent
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`16,31,46 18
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`they may have had some input or something, that they
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`16,31,51 19 were overwhelmed by the other evidence of obviousness.
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`16:31:54 20
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`So there was no amount of any one of those
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`16,3LSB 21
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`characteristics or secondary concerns that could have
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`16,32,01 22
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`effected the balance.
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`16,32,03 23
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`MR. GANNON: Could you play clip RD17,
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`16,32,03 24
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`please?
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`~-6: 32:03 25
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`0010
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`16,32,12
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`"Q.
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`Did you consider any
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`secondary considerations
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`in rendering your opinion
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`that the claims of the TT
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`patents in suit are
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`obvious?
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`"A.
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`No -- 11
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`MR. LOMBARDI: Your Honor, not only did that
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`16,32,29 10
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`not play the whole context, he cut it off in the middle
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`16,32,29 11
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`of the answer.
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`THE COURT: You should finish the answer.
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`MR. LOMBARD I : And could I have the page and
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`16,32,36 14
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`line number too, counsel?
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`16,32,38 15
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`MR. GANNON:
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`Page 202, Lines 12 through 15.
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`16,32,46 16
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`BY MR. GANNON:
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`16,32,46 17
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`Q. Do you understand
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`16,32,47 18
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`MR. LOMBARDI:
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`I think the judge indicated
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`16,]2,49 19
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`that you --
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`16,32,49 20
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`THE COURT: You should play the rest of the
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`answer. You cut him off in the middle of his answer.
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`16,32,55 22
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`MR. GANNON: Your Honor, we don't have the
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`16,32,57 23
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`rest of the clip.
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`16,32,59 24
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`THE COURT:
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`It may not be in the video, but
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`1_6,33,02 25
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`it was in the -- in the audio, but it was in the video.
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`0011
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`2653
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`MR. LOMBARDI:
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`I have it if counsel needs
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`THE COURT: Okay.
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`MR. LOMBARDI: Should I read it or just hand
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`it.
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`it to him?
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`THE COURT: Hand it to counsel.
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`MR. LOMBARDI: Okay.
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`BY MR. GANNON:
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`"Q.
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`Did you consider any
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`secondary considerations
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`in rendering your opinion
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`that the claims of the TT
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`patents in this suit are
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`obvious?
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`"A.
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`No. As I note in here,
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`in light of the clear
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`obviousness of the
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`asserted claims of the
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`'132 and '304 patents,
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`any secondary
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`considerations are
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`unlikely to affect my
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`opinion."
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`BY MR. GANNON:
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`Q.
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`Is that accurate, Mr. Dezmelyk?
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`A. Yes.
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`Q. Do you understand that you are always supposed to
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`consider secondary considerations in the context of an
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`obviousness inquiry?
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`A. Yes, and I did to establish that they could have
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`no effect on the outcome.
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`Q. Well, did you consider any evidence of copying in
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`this case, Mr. Dezmelyk?
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`A. Well, in general, in software, it is very
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`difficult to see if the visual appearance of a user
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`interface is indicative of copying in the sense that it
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`is relevant to an inquiry into obviousness because there
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`is a very strong standardization in interfaces. There
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`are a lot of common components, and when the components
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`are present to such an extent that -- as they are here,
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`then that is not a test where you are going to get
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`useful information from the question of copying.
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`To look at that a little bit further, we have the
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`visual display part here existing in the TSE prior art.
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`That is, it has a virtually identical static price axis
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`with dynamic bids and asks, it is completely present in
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`the prior art.
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`So the question then becomes:
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`Is there -- would
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`there be copying of the step -- of the obvious step,
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`that would be the step that was needed to determine
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`this?
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`Q. Did you consider any evidence of commercial
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`success in rendering your opinion of obviousness?
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`A. Again, it is very difficult to use commercial
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`success for software products of this sort to ascertain
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`obviousness in that the commercial success
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`that is
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`not true in other patent areas, but in this particular
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`area, again, the market share of a particular software
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`program may very wildly on factors that are not related
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`to the innovation.
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`Q. Did you consider any evidence of initial
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`skepticism in this case?
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`A. Yes, but I think the important point is it would
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`be skepticism of developers, not traders or end users.
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`I may be getting ahead of myself on you a little
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`16,36,12 18 bit but I have seen a lot rebuttal arguments that it is
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`the opinion of people that are users that matters, but
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`it is not. There will be no skepticism whatsoever among
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`software engineers that you could combine single-action
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`22 with any visual display to get a faster result.
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`Q.
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`In rendering your opinion, you did not take into
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`account the file history, correct?
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`A. No.
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`File history is not specifically relevant to my
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`inquiry into obviousness.
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`The question before me as an expert looking at
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`obviousness is: What did the practitioners know what
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`5 was the prior art, and how would they combine it?
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`I was asked to ascertain that independently of
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`7 what other people who may have been looking at similar
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`related issues did.
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`Q. Could you play RD14, please.
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`MR. LOMBARDI: Could we have a page and line
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`reference, please?
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`"Q.
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`So you didn't take the
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`file history into
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`consideration at all in
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`rendering your opinion;
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`is that right?
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`nA.
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`No,
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`I did not take the
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`file history into
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`consideration."
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`MR. LOMBARDI: Can I have a page and line
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`MR. GANNON: That is Page 125, lines 3
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`number?
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`through 4.
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`0015
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`BY MR. GANNON:
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`Q. Now, Mr. Dezmelyk, there was testimony today
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`about the TSE manuals, correct?
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`A. Yes.
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`Q. And in particular, there was a discussion about
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`the scroll mode; is that right?
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`A. Yes.
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`Q. And I believe you testified that in the scroll
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`9 mode, the prices were static, correct?
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`A.
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`Q.
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`In scroll mode, the price axis is static.
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`Isn't it true that the TSE manuals don't show
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`entering orders in the scroll mode?
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`A.
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`I don't think-- they don't say you can't, I am
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`not sure there is an example in the order entry page
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`related to scroll mode.
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`Q.
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`So, is it fair to say the manuals do not show
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`entering orders in the scroll mode?
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`A.
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`I don't recall at the moment an example of where
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`they do, but it is clear that in order for them to be
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`functional, they would do so.
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`Q. But you didn't see any explicit reference to
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`entering orders in the scroll mode in the manuals?
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`A. Not that I can recall at the moment.
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`I would
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`have to look at the manual.
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`Q. All right.
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`Mr. Dezmelyk, are you aware of a user at any time
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`actually entering orders in the TSE system in scroll
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`3 mode?
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`A. No, although it is possible that Mr. Kida is.
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`I
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`am not immediately aware of that.
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`Q. You can't name --
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`A.
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`I have never observed it.
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`Q. You don't know of a specific user that has
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`actually entered an order in the scroll mode, correct?
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`A. No.
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`Q. That is a yes? We have a double negative there.
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`A. Okay.
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`I have never observed the operation of the TSE
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`system -- because this is from 1998, so I have never
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`observed any user operate that system.
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`Q.
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`So you are not aware of any user that has
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`actually entered an order in scroll mode, are you?
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`A. No,
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`I am not.
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`Q. Now, you agree that the TSE system did not have
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`single-action order entry, right?
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`A. Right.
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`The system by itself does not have
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`single-action order entry as defined by the Court.
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`Q. And you know, don't you, that the TSE system
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`'6,39,49 25 doesn't have single-action even today, correct?
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`A. Well, I am not familiar with the system today but
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`it may be that they don't have that.
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`Q. Are you aware of the TSE system actually using
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`static in combination with single-action order entry
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`today?
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`A. No, but that doesn't effect the analysis of
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`7 whether it would be obvious to do it because it may well
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`be that, in the market circumstance they are in, that is
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`9 what people want.
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`Q. But you are not aware of that actually being the
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`case, are you?
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`A. Well, what I just said -- I am aware of what I
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`just said.
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`I think your question is a little tangled
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`there.
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`I don't know at this time whether TSE had
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`single-action or not, but it doesn't effect my analysis.
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`Q. Thank you, Mr. Dezmelyk.
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`REDIRECT EXAMINATION
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`BY MR. LOMBARDI:
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`Q. Mr. Dezmelyk, could you please explain to the
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`jury why you haven't seen the 1998 TSE system in
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`operation?
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`A. Well, 1998 was a long time ago.
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`To my knowledge
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`there is no videos of it; certainly I wasn't in Japan in
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`1998 looking at it. And so there is no easy way now to
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